Voorhies Terrace Owners Corp. v. State Realty LLC

2024 NY Slip Op 31155(U)

• Court: New York Supreme Court, Kings County
• Decided: April 4, 2024
• Status: Unpublished

Opinion

Voorhies Terrace Owners Corp. v State Realty LLC 2024 NY Slip Op 31155(U) April 4, 2024 Supreme Court, Kings County Docket Number: Index No. 515154/2018 Judge: Leon Ruchelsman 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. FILED: KINGS COUNTY CLERK 04/04/2024 02:55 PM INDEX NO. 515154/2018 NYSCEF DOC. NO. 150 RECEIVED NYSCEF: 04/04/2024

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS : CIVIL TERM: COMMERCIAL 8 - -------- -- -~ ------. -- -- -----------x VOORHIES TERRACE OWNERS CORP., Plaintiff, Decision and order

- against - Inde~ No. 515154/2018

STATE REALTY LLC, Defendant, April 4, 2024 ------. --- . -.-·----: .. -- . --- .-·· ---- ·---.-------x PRESENT: HON. LEON RUCHELSMAN Motion Seq. #2 & #3

The defendant has moved pursuant to CPLR §3212 seekirrg

summary judgement dismissing the complaint and granting judgement

upon the first counterclaim. The plaintiff has cross-moved,

likewise, seeking summary judgement. The motions have been

opposed respectively. Papers have been submitted by the parties

and arguments held. After reviewing all the arguments this court

now makes the following determination.

The plaintiff, Voorhies, is the owner and manager of a

cooperative housing corporation with one hundred arid five

apartments located at 2330 Voorhies Avenue in Kings County. The

defendant is the owner of seventeen a·partments arid 2,210 Shares

since 2000. Specifically, the defendant purchased tep. apartments

from SAJL Realty, LLC, namely, apartments lA, 2A, SB, 6B, 4I, 3J,

4J, SM:, 6M arid 4N and seven apartments from Ziege.lman Joint

Vent:ure IX, namely, 4C, SD, 2Ii Stl 2N, 3P .and 6E; predecessor

owners of such apartrri.ents. Exhibit 2 of the contract cont.ained the number of unsold shares that. cor~elat'?d to each of the seventeen ._apartrn,ents. Thus, there is no dispute the defendant

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purcha.secl the se:Ve.nteen apartments .._ In _January 20:01 the

p;l.ainti:ff and de_te;ndant entered into art agreement which stated

that "the c·orpoia:tion recognizes SR as a bolder of unsold shares

descr-ibed In the Corpo.r~tion_' s c9operatiy.e. off._ering ·plan -a.nd

proprietary leas_e. with rega.:tc:i to the shares of stock allocated to

the Apartments, subject to the additional obligations and

-a-gre~ments set forth h.e·rein'' _(see, Agreem·ent·, ·13 [N.YSCEF Doc. N.o.

69] ) .

1rhe plainti.f.f a.rgt:!.es that even. though the- de.fe:ndant purch~s.ed the seventeen.. apartments and even though thr: 24 th

amendment to the operating agr:eememt, dated August 8", 199:0, lists

the unsold sl.'lares _whic:h ·cor.respond to the same seve·nteen

apartments purchased by the defendant, the owners ~f those shares are not the same as the sellers of the .apartments .to the:

defendant. .Furthe.;r, the. plaintiff argues- ther agree~ent

is hot binding. Consequently , the plaintiff insists there is no

e:viden.ce the defendant is th.e owner of any uns-old·s.hare s. The

defendant .opposes the m9ti.on ~nd ~ls.o moves seeking _sumrna_ry

judgement dismissing the complaint ·on va·rious grounds, including

the statute of limitati.Qns, and se._eks a- ·dete:r:minat.i_o n they- are

the iawful owner. of the unsold shares.

Conclusions of La~

Where th~ matetiai facts at issue in a case a~e in dispute

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summary judgment. -cannot .be g,rante.d ( Zucke·rmari. v. C.i ty of. N·ew

York, 49 NY$2._d 557 ~ 427 NYS~d 595 [1980]). Genera:lly, it .is for

the jury, t·he tr·ier of fact to dEftertn±ne the iegai cause of any

injury-., however, where only one c_onol:us.ion rri.ay be qr awn "from the·

facts then the question of legal cause may be decided by the

trial court as a ·matte.:r of law (Marino v, Jamison, "i-89 -Ao_3d 1021,

136 NYS-3d 3"-2-4 [2d Dept., 2021). These ca.uses of action first arose in 2001 when an ag.reem·ent

was entered :into· hetwee'n the. parties re9ardin:g uns.o-ld sba·res.

The plaintiff., however, instituted this lawsuit in 20+8 weJ,.l

beyond any statute of limitations. The plaintiff argues that

pursua.h_t to· a rto-wai.ve.r clause ·contained in the prop.riet_ary lea:~e

the action is tirneJy. Paragraph 26 of trie proprietary lease

l:!tat~s that ·"the failure of the Lessor to insist, in· any· one or

more iristarices, :upon a strict _per.f·ormance of .'3-ny o.f ttie

provisions of this Lease, or to exercise any right or option

'herein· con:ta.ined,. or to· serve· any notice, or to institute -any :action or p_:toceedin.g, shall ;i::i.ot .be c:;onstrued a_s a waiver or a

relinquishme nt £.or the· futur·e of any such provisions, opt-ions or

rights·, but such. provis,i·on, . option. or right shall co.ntinil-e and

remain in full force ahd effect" (§§.§., Proprietary Lease, 'Jl26

[NYSCEF Dot:. No. 132]-> . While no.-.waiver clat1.ses a:re generally :enforc.eable (see, A~ards,com LLC V. Kinko's Inc., 42 AD1d 178, Bl~ NYS2d 147 [.l~

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Qept., 2007 J) they specifically relate to the contents of the

agreement. Thus, in this case the clause states that the lessor

does not waive "arty provisions of this leaser, or any right or

option "herein containedl' within the lease. The rights or

options that are not waived include the right to commence any

lawsuits. However, that right merely expressed that no previous

waiver could he asserted as a defense to any lawsuit :filed. As

the court noted in Rotblut v. 150 East 77 th Street Corp., 7 9 AD3d

532, 914 NYS2d 22 [Pt Dept., 2010] \'in light Of the 'no waiver'

provision of the proprietary lease, plaintiffs £ailed to

demonstrate that defendant waived its right to declare that

plaintiffs were not holders of unsold shares by agreeing that

consent to certain acts was not required or that certain fees

need not be paid" (id) . Therefore,; no action taken by the

plaintiff would bar any subsequent ability seeking to adjudicate

the issue of unsold shares or any other issue. However, the no-

waiver clause, did not and could hot, waive the plaintiff's

bbligat.ion to' comply with any relevant statute of limitations.

The statute of limitations is an affirrrtative defense which mµst

be raised by the defendant or is waived (Moody v, HmOud, 192 AD3d

1007, 146 NYS3d 149 [2d Dept., 2021]). The second affirmative

defense contained in the answer asserts the action is barred by

the statute of limitations (see, Answer to Verified Complaint

with Counterclaims, '][17 [NYSCEF Doc. No. 3]). Thus, the defense

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of statute of limitations was not waived by the defendant. As

noted, no clause in an agreement between two parties can alter

the time for filing causes of action as outlined in the CPLR.

The plai]J.tiff is essentially arguing that a no-waiver clause

preempts the defendant's ability to assert any aff.irmative

defenses and especially the defert.se of the statute of

limitations. However, the no-waiver clause only acts to permit

the plaintiff to take any action despite the waiver of any

rights. The clause does not impose upon the defendant the

inability to assert any defenses it m:ay possess. TherE!fore, the

no-waiver clause cannot possibly allow the lawsuit to proceed in

light of a legitimate, ahd really unbpposed, statute of

limitation.s defense.

Therefore, the defendant's motion seeking summary judgement

dismissing the entire lawsuit is granted. Further, the

defendant's request seeking a determination they are the owners

of the unsold shares is granted. The plaintiff's motion seeking

summary judgement arid a determination the defendant is not the

owner of any unsold shares is denied.

So ordered.

ENTER:

DATED:. April 4, 2024 Brooklyn N.Y. Hon. JSC

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