Brooklyn Heights

Latest decisions from the Appellate Division, Second Department

June 25, 2024 Robert Abruzzese, Courthouse Editor
The Appellate Division, Second Department, overturned Kings County Supreme Court decisions on improper default judgment, liability for structural sidewalk repairs, fault in a vehicle accident, and validity of a property sale contract due to improper notice. It also reversed a Suffolk County decision on the forfeiture of a security deposit for failing to provide a timely itemized statement. Eagle photo by Rob Abruzzese
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Appellate Court denies default judgment against 641 Midwood, LLC

The Appellate Division, Second Department, has overturned a Kings County Supreme Court decision that granted a default judgment against 641 Midwood, LLC, in a property dispute. The appellate court found that the lower court improperly granted the default judgment despite mitigating factors.

Eli Biton initiated the action to quiet title to a property (verify ownership) in Brooklyn under RPAPL article 15. Biton sought a default judgment against 641 Midwood LLC after the defendant failed to appear or respond to the complaint. The Supreme Court, Kings County, granted Biton’s motion for a default judgment and denied the defendant’s cross-motion to dismiss the complaint.

However, the Appellate Division modified the order, denying Biton’s motion for a default judgment. The court noted that the defendant’s default was not willful, the delay in responding was relatively short, and there was no prejudice to the plaintiff. Additionally, the court recognized the existence of a potentially meritorious defense and emphasized the public policy favoring the resolution of cases on their merits.

As a result, 641 Midwood, LLC, will not be subject to a default judgment, and the case will proceed on its merits.

– Biton v. 641 Midwood, LLC –

Appellate Court rules landlords forfeit security deposit for late itemized statement

The Appellate Division, Second Judicial Department, has reversed a Suffolk County Supreme Court decision in favor of Mitchell Cohen, who sought the return of his full security deposit from landlords Anthony and Grace Abruzzo. The appellate court found that the Abruzzos failed to comply with state law regarding the timely return of security deposits.

In May 2020, Cohen entered into a two-month lease agreement with the Abruzzos for a residence in Wading River, NY, and paid a $20,000 security deposit. After vacating the property on July 24, 2020, Cohen was informed by the Abruzzos of alleged damages totaling $4,561.48, for which they provided an itemized statement on August 13, 2020. The remaining $15,438.52 of the deposit was returned to Cohen.

Cohen filed a lawsuit to recover the entire security deposit, citing a violation of General Obligations Law § 7-108(1-a)(e), which requires landlords to provide an itemized statement within 14 days of a tenant vacating the premises. The Suffolk County Supreme Court initially ruled in favor of the Abruzzos, granting them summary judgment.

However, the Appellate Division found that the Abruzzos did not meet the 14-day requirement, which ended on Aug. 7, 2020. By failing to provide the itemized statement within this period, the Abruzzos forfeited their right to retain any portion of the deposit under the General Obligations Law. Consequently, the appellate court denied the Abruzzos’ motion for summary judgment and reversed the lower court’s decision.

– Cohen v. Abruzzo –

Appellate Court rules supermarket not liable for sidewalk repairs

The Appellate Division, Second Judicial Department, has reversed a decision by the Kings County Supreme Court, ruling that E Food Supermarket Inc. is not responsible for indemnifying the property owner, Cude Wu, for structural sidewalk repairs.

The case arose after plaintiff Maria Errazuri tripped on a broken sidewalk slab adjacent to the supermarket in Brooklyn. Errazuri sued for personal injuries, and Wu, the property owner, sought contractual indemnification from the supermarket under their lease agreement. The Kings County Supreme Court had denied both parties’ motions for summary judgment regarding the indemnification claim.

The Appellate Division’s decision clarified that the lease and rider agreement specified the tenant’s responsibility for nonstructural repairs only, with the owner responsible for structural repairs. The court found that the supermarket’s obligation did not extend to structural repairs of the sidewalk, thus reversing the lower court’s denial of the supermarket’s motion for summary judgment and dismissing Wu’s cross-claim for indemnification.

– Errazuri v. E Food Supermarket, Inc. –

Court rules plaintiff not at fault due to lack of evidence from defendants

The Appellate Division, Second Department, has overturned a Kings County Supreme Court decision, granting summary judgment to Shownne Hogan and dismissing the defendants’ comparative negligence defense. The court found Hogan was not at fault in a vehicle accident involving a truck operated by Toby Townsend due to the defendants’ failure to provide evidence.

Hogan sued for personal injuries after Townsend’s truck struck his vehicle. The defendants claimed Hogan was partially at fault. Hogan moved for summary judgment on liability and to dismiss the comparative negligence defense. The Supreme Court denied the motion pending depositions.

The appellate court determined Hogan established that Townsend was at fault. Hogan’s affidavit stated he was stationary, waiting to parallel park, when Townsend struck his vehicle. The defendants failed to provide admissible evidence to dispute this.

The court also ruled the motion was not premature, as further discovery was unlikely to uncover new evidence. The appellate court granted Hogan’s motion for summary judgment and dismissed the defendants’ defense.

– Hogan v. Townsend –

Appellate Court upholds validity of property sale contract due to improper notice

The Appellate Division, Second Department, has upheld a Kings County Supreme Court decision, ruling that a contract for the sale of a Brooklyn property to plaintiffs Moshe Kugel and others remains valid and in full force. The appellate court reversed parts of the lower court’s decision and provided clarity on the obligations and rights of the involved parties.

In 2012, defendant Kenneth Reynolds entered into a contract to sell a Brooklyn property to the plaintiffs. Later that year, Reynolds entered into a separate contract to sell the same property to Henry Ausch or an entity to be formed by him. Ultimately, Reynolds sold the property to Albany Marks, LLC, of which Henry Ausch is the sole member. The plaintiffs then sued for declaratory relief, specific performance, and damages for tortious interference, among other claims.

The Kings County Supreme Court originally ruled against the plaintiffs on multiple claims but later, upon reargument, ruled in favor of the plaintiffs on several key issues, including the validity of the original sale contract with Reynolds. The Appellate Division affirmed this decision and explained that Reynolds had not given proper notice for making the closing date “time of the essence,” and, thus, the plaintiffs’ contract remained valid.

Additionally, the appellate court granted summary judgment in favor of the plaintiffs, dismissing the defendants’ affirmative defenses, and ruled that the plaintiffs were entitled to specific performance of the contract. The court also determined that the Ausch defendants’ cross-motion for summary judgment on various other claims was properly denied.

The case has been remitted to the Supreme Court, Kings County, for the entry of a judgment declaring the plaintiffs’ contract of sale is in full force and effect. 

– Kugel v. Reynolds- 

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