Brookes v 157th St. Assoc., LLC 2024 NY Slip Op 32571(U) July 25, 2024 Supreme Court, New York County Docket Number: Index No. 160664/2020 Judge: Mary V. Rosado Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 160664/2020 NYSCEF DOC, NO. 155 RECEIVED NYSCEF: 07/25/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO PART 33M Justice ---------------------- ----------X INDEX NO. 160664/2020 COLIN BROOKES, CELIA HATTON, RAVENNA UPCHIK, KAREN POLESHUCK, MAX JACOB, ISAAC HAYWARD MOTION DATE 11/06/2023
Plaintiffs, MOTION SEQ. NO. 003
- V - DECISION + ORDER ON 157TH STREET ASSOCIATES, LLC, MOTION Defendant. ---------------------------------------------- ------X
The following e-filed documents, listed by NYSCEF document number (Motion 003) 135, 136, 137, 138, 139, 140, 141, 142, 143,144,145, 146,148,149 were read on this motion to/for REAR GU MENT/RECONSI DERATION
Upon the foregoing documents, and after oral argument which took place on March 26,
2024, Defendant 157th Street Associates, LLC's ("Defendant"), motion for leave to reargue the
Court's Supplemental Decision and Order dated September 18, 2023 (NYSCEF Doc. 143) is
granted. Upon reargument, Defendant's motion for prospective use and occupancy is granted, and
Plaintiffs Karen Poleshuck ("Poleshuck"), Michael Jacob ("Jacob"), and Isaac Hayward
("Hayward") are ordered to post a bond to cover their potential liability for past use and occupancy.
I. Background and Procedural History
By Decision and Order filed May 2, 2023 (Mot. Seq. 002) the Court, inter alia, granted
Defendant's motion for use and occupancy (NYSCEF Doc. 140). Recognizing that the amount
owed in use and occupancy may have increased since Defendant first moved for use and occupancy
on July 26, 2022 and that certain tenants have vacated the premises, the Court directed Defendant
to file an updated ledger regarding the use and occupancy owed by each Plaintiff as of the date of
the Mot. Seq. 002 Decision and Order (Id.).
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On May 9, 2023 Defendant filed an affidavit of Konstantinos Kapelonis ("Kapelonis'),
Defendant's Managing Member, which stated that Plaintiffs Poleshuck, Jacob and Hayward
remain in possession of their apartments (NYSCEF Doc. 128). Regarding Poleshuck, Kapelonis
stated that her last executed lease, which expired on June 30, 2021, was for a monthly rent of
$2,450.00, and that Poleshuck had not paid rent since April 2022 (Id.). Regarding Jacob, Kapelonis
stated that his last executed lease, which expired on June 30, 2022, was for a monthly rent of
$2,550.00, and that Jacob had not paid rent for the months of January 2022 through October 2022
(Id.). Finally, with respect to Hayward, Kapelonis stated that his last executed lease, which expired
on June 30, 2020, was for a monthly rent of $2,200.00, and that Hayward had not paid rent since
December 2020 (Id.). On May 9, 2023 Defendant submitted a Rent Ledger corroborating the
monthly payments asserted by Kapelonis and showing that Poleshuck owed rental arrears in the
amount of$31,850.00, Jacob owed arrears in the amount of $27,950.00, and Hayward owed arrears
in the amount of $63,800.00 (NYSCEF Doc. 129).
On September 18, 2023 the Court issued a Supplemental Decision and Order ordering
Poleshuck, Jacob and Hayward to pay Defendant ongoing use and occupancy pendente lite at the
monthly rates set by their last executed leases until their apartments were properly surrendered or
this matter has been discontinued, whichever comes sooner (NYSCEF Doc. 143 at 3-4).
On November 5, 2023 Defendant brought the instant motion to reargue the Court's
September 18, 2023 Supplemental Decision and Order on the ground that the Court overlooked
the award of past use and occupancy included in the Mot. Seq. 002 Decision and Order filed May
2, 2023 (NYCEF Doc. 136).
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II. Discussion
a. Leave to Rcargue is Granted
Pursuant to CPLR § 2221(d), a motion for reargument should be granted where the Court
overlooks or misapprehends issues of fact or law (Smith v City of Buffalo, 997 NYS2d 563, 564
[2014]). Here, the Court agrees with Defendant that certain issues of fact were overlooked.
Specifically, in its Supplemental Decision and Order dated September 18, 2023, the Court awarded
Defendants use and occupancy from Plaintiffs Karen Poleshuck, Michael Jacob and Isaac Hayward
pendente lite, and overlooked the intention of the Court's Decision and Order on Mot. Seq. 002
filed May 2, 2023, to consider past use and occupancy upon submission of Defendant's Rent
Ledger (NYSCEF Doc. 140).
b. Defendant's Motion for Use and Occupancy
Upon reargument, the Court's September 18, 2023 Order remains unchanged with respect
to prospective use and occupancy and Defendant is awarded ongoing use and occupancy pendente
lite from Plaintiff Poleshuck at a rate of $2,450.00 per month; from Plaintiff Jacob at a rate of
$2,550.00 per month; and from Plaintiff Hayward at a rate of $2,200.00 per month, beginning
October 1, 2023. Additionally, Plaintiffs Poleshuck, Jacob and Hayward are ordered to post a bond
to cover their potential liability for past use and occupancy from July 2022 (the date Defendant
first moved for use and occupancy) through September 2023 (the date of the Court's initial
Supplemental Decision and Order on Mot. Seq. 002).
While Poleshuck, Jacob and Hayward dispute the amount of arrears claimed by Defendant
(NYSCEF Docs. 142), it is well settled that "a dispute concerning the amount of rent owed is no
reason to allow a tenant to occupy the landlord's real property gratis" (Levinson v 390 W End
Assoc., L.L.C., 22 AD3d 397,403 [1st Dept 2005]).
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In support of the instant motion, Defendant has provided an updated rent ledger showing
that for the period between July 2022 and September 2023, Poleshuck owes rental arrears in the
sum of $26,950.00, Jacob owes rental arrears in the sum of $10,200.00 and Hayward owes rental
arrears in the sum of $28,600.00 (NYSCEF Doc. 144). As such, Poleshuck is ordered to post a
bond in the sum of $26,950.00, Jacob is ordered to post a bond in the sum of $10,200.00 and
Hayward is ordered to post a bond in the sum of $28,600.00.
Accordingly, it is hereby,
ORDERED that Defendant 157th Street Associates, LLC's motion for leave to reargue the
Court's Supplemental Decision and Order dated September 18, 2023 is granted; and it is further
ORDERED that upon reargument, Defendant 157th Street Associates, LLC's motion for
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Brookes v 157th St. Assoc., LLC 2024 NY Slip Op 32571(U) July 25, 2024 Supreme Court, New York County Docket Number: Index No. 160664/2020 Judge: Mary V. Rosado Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 160664/2020 NYSCEF DOC, NO. 155 RECEIVED NYSCEF: 07/25/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO PART 33M Justice ---------------------- ----------X INDEX NO. 160664/2020 COLIN BROOKES, CELIA HATTON, RAVENNA UPCHIK, KAREN POLESHUCK, MAX JACOB, ISAAC HAYWARD MOTION DATE 11/06/2023
Plaintiffs, MOTION SEQ. NO. 003
- V - DECISION + ORDER ON 157TH STREET ASSOCIATES, LLC, MOTION Defendant. ---------------------------------------------- ------X
The following e-filed documents, listed by NYSCEF document number (Motion 003) 135, 136, 137, 138, 139, 140, 141, 142, 143,144,145, 146,148,149 were read on this motion to/for REAR GU MENT/RECONSI DERATION
Upon the foregoing documents, and after oral argument which took place on March 26,
2024, Defendant 157th Street Associates, LLC's ("Defendant"), motion for leave to reargue the
Court's Supplemental Decision and Order dated September 18, 2023 (NYSCEF Doc. 143) is
granted. Upon reargument, Defendant's motion for prospective use and occupancy is granted, and
Plaintiffs Karen Poleshuck ("Poleshuck"), Michael Jacob ("Jacob"), and Isaac Hayward
("Hayward") are ordered to post a bond to cover their potential liability for past use and occupancy.
I. Background and Procedural History
By Decision and Order filed May 2, 2023 (Mot. Seq. 002) the Court, inter alia, granted
Defendant's motion for use and occupancy (NYSCEF Doc. 140). Recognizing that the amount
owed in use and occupancy may have increased since Defendant first moved for use and occupancy
on July 26, 2022 and that certain tenants have vacated the premises, the Court directed Defendant
to file an updated ledger regarding the use and occupancy owed by each Plaintiff as of the date of
the Mot. Seq. 002 Decision and Order (Id.).
160664/2020 BROOKES, COLIN vs. 157TH STREET ASSOCIATES, LLC Page 1 of 6 Motion No. 003
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On May 9, 2023 Defendant filed an affidavit of Konstantinos Kapelonis ("Kapelonis'),
Defendant's Managing Member, which stated that Plaintiffs Poleshuck, Jacob and Hayward
remain in possession of their apartments (NYSCEF Doc. 128). Regarding Poleshuck, Kapelonis
stated that her last executed lease, which expired on June 30, 2021, was for a monthly rent of
$2,450.00, and that Poleshuck had not paid rent since April 2022 (Id.). Regarding Jacob, Kapelonis
stated that his last executed lease, which expired on June 30, 2022, was for a monthly rent of
$2,550.00, and that Jacob had not paid rent for the months of January 2022 through October 2022
(Id.). Finally, with respect to Hayward, Kapelonis stated that his last executed lease, which expired
on June 30, 2020, was for a monthly rent of $2,200.00, and that Hayward had not paid rent since
December 2020 (Id.). On May 9, 2023 Defendant submitted a Rent Ledger corroborating the
monthly payments asserted by Kapelonis and showing that Poleshuck owed rental arrears in the
amount of$31,850.00, Jacob owed arrears in the amount of $27,950.00, and Hayward owed arrears
in the amount of $63,800.00 (NYSCEF Doc. 129).
On September 18, 2023 the Court issued a Supplemental Decision and Order ordering
Poleshuck, Jacob and Hayward to pay Defendant ongoing use and occupancy pendente lite at the
monthly rates set by their last executed leases until their apartments were properly surrendered or
this matter has been discontinued, whichever comes sooner (NYSCEF Doc. 143 at 3-4).
On November 5, 2023 Defendant brought the instant motion to reargue the Court's
September 18, 2023 Supplemental Decision and Order on the ground that the Court overlooked
the award of past use and occupancy included in the Mot. Seq. 002 Decision and Order filed May
2, 2023 (NYCEF Doc. 136).
[The remainder of this page is intentionally left blank]
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II. Discussion
a. Leave to Rcargue is Granted
Pursuant to CPLR § 2221(d), a motion for reargument should be granted where the Court
overlooks or misapprehends issues of fact or law (Smith v City of Buffalo, 997 NYS2d 563, 564
[2014]). Here, the Court agrees with Defendant that certain issues of fact were overlooked.
Specifically, in its Supplemental Decision and Order dated September 18, 2023, the Court awarded
Defendants use and occupancy from Plaintiffs Karen Poleshuck, Michael Jacob and Isaac Hayward
pendente lite, and overlooked the intention of the Court's Decision and Order on Mot. Seq. 002
filed May 2, 2023, to consider past use and occupancy upon submission of Defendant's Rent
Ledger (NYSCEF Doc. 140).
b. Defendant's Motion for Use and Occupancy
Upon reargument, the Court's September 18, 2023 Order remains unchanged with respect
to prospective use and occupancy and Defendant is awarded ongoing use and occupancy pendente
lite from Plaintiff Poleshuck at a rate of $2,450.00 per month; from Plaintiff Jacob at a rate of
$2,550.00 per month; and from Plaintiff Hayward at a rate of $2,200.00 per month, beginning
October 1, 2023. Additionally, Plaintiffs Poleshuck, Jacob and Hayward are ordered to post a bond
to cover their potential liability for past use and occupancy from July 2022 (the date Defendant
first moved for use and occupancy) through September 2023 (the date of the Court's initial
Supplemental Decision and Order on Mot. Seq. 002).
While Poleshuck, Jacob and Hayward dispute the amount of arrears claimed by Defendant
(NYSCEF Docs. 142), it is well settled that "a dispute concerning the amount of rent owed is no
reason to allow a tenant to occupy the landlord's real property gratis" (Levinson v 390 W End
Assoc., L.L.C., 22 AD3d 397,403 [1st Dept 2005]).
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In support of the instant motion, Defendant has provided an updated rent ledger showing
that for the period between July 2022 and September 2023, Poleshuck owes rental arrears in the
sum of $26,950.00, Jacob owes rental arrears in the sum of $10,200.00 and Hayward owes rental
arrears in the sum of $28,600.00 (NYSCEF Doc. 144). As such, Poleshuck is ordered to post a
bond in the sum of $26,950.00, Jacob is ordered to post a bond in the sum of $10,200.00 and
Hayward is ordered to post a bond in the sum of $28,600.00.
Accordingly, it is hereby,
ORDERED that Defendant 157th Street Associates, LLC's motion for leave to reargue the
Court's Supplemental Decision and Order dated September 18, 2023 is granted; and it is further
ORDERED that upon reargument, Defendant 157th Street Associates, LLC's motion for
prospective use and occupancy is granted, and Plaintiffs Karen Poleshuck, Michael Jacob, and
Isaac Hayward are each ordered to post a bond to cover their potential liability for past use and
occupancy; and it is further
ORDERED that Plaintiff Karen Poleshuck shall pay to Defendant 157th Street Associates,
LLC ongoing use and occupancy pendente lite at a rate of $2,450.00 per month from October 1,
2023, until Apartment 4A is properly surrendered or this matter has been discontinued, whichever
comes sooner; and it is further
ORDERED that Plaintiff Karen Poleshuck shall post a bond in the amount of $26,950.00
as security for potential liability for rental arrears from July 2022 through September 2023; and it
is further
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ORDERED that Plaintiff Michael Jacob shall pay to Defendant 157th Street Associates,
LLC ongoing use and occupancy pendente lite at a rate of $2,550.00 per month from October 1,
2023, until Apartment 5E is properly surrendered or this matter has been discontinued, whichever
ORDERED that Plaintiff Michael Jacob shall post a bond in the amount of $10,200.00 as
security for potential liability for rental arrears from July 2022 through September 2023; and it is
further
ORDERED that Plaintiff Isaac Hayward shall pay to Defendant 157th Street Associates,
LLC ongoing use and occupancy pendente lite at a rate of $2,200.00 per month from October 1,
2023, until Apartment 6EE is properly surrendered or this matter has been discontinued, whichever
ORDERED that Plaintiff Isaac Hayward shall post a bond in the amount of $28,600.00 as
security for potential liability for rental arrears from July 2022 through September 2023; and it is
ORDERED that the parties are directed to submit a proposed Compliance Conference
Order to the Court on or before September 10, 2024 via e-mail to SFC-Part33-
Clerk@nycourts.gov. If the parties are unable to agree to a proposed Compliance Conference
Order, the parties are directed to appear for an in-person compliance conference with the Court on
September 11, 2024 at 9:30 a.m. in 60 Centre Street, Room 442, New York, New York; and it is
ORDERED that within 10 days of entry, counsel for Defendant 157th Street Associates,
LLC shall serve a copy of this Decision and Order, with notice of entry, upon all parties to this
action; and it is further
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ORDERED that the Clerk of the Court is directed to enter judgment accordingly.
This constitutes the Decision and Order of the Court.
7/25/2024 DATE Hd>N. MARY V. ROSADO, J.S.C.
CHECK ONE: CASE DISPOSED ~ NON-FINAL DISPOSITION GRANTED □ DENIED GRANTED IN PART Q OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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