Preview
FILED: NEW YORK COUNTY CLERK 09/21/2023 01:13 PM INDEX NO. 161105/2021
NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 09/21/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY
RSOLe SSL OF
SSL NEW YORK
Sat AS,
| Index No.: 161105/2021
FIFTH PARTNERS LLC, I
Plaintiff, | NOTICE OF ENTRY OF
-against- | DECISION & ORDER ON
| MOTION
PUNCH HOUSE FLATIRON LLC, JOSEPH W. FOLEY I
and NADA VASILIJEVIC,
Mot. Seq. Nos. 002, 003, 004
Defendants.
-ea---- +--+.
PLEASE TAKE NOTICE, that a Decision and Order on Motion dated September 21, 2023,
of the Hon. Gerald Lebovits, J.S.C., of which the within is a true copy, was duly entered and filed in
the office of the County Clerk of New York County on September 21, 2023
Dated: New York, New York
September 21, 2023
BORAH, GOLDSTEIN, ALTSCHULER,
NAHINS & GOIDEL, P.C,
By: yh (Ila ollie [
GOSHUA NADELBACH
Attorneys for Plaintiff
377 Broadway, 6" Floor
New York, New York 10013
(212) 431-1300
x 644
To: Punch House Flatiron LLC
19 West 21st Street
New York, NY 10010
Joseph W. Foley
56 Pierrepont Street, #14
Brooklyn, NY 11201
Nada Vasilijevic
56 Pierrepont Street, #14
Brooklyn, NY 11201
Nada Vasilijevic
70 Irving Place, Apt. 6D
New York Ny 10003
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INDEX NO. 161105/2021
NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 09/21/2023
(FILED: NEW YORK COUNTY CLERK 09/21/2023 01:03 PM INDEX NO. 161105/2021
NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 09/21/2023
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. GERALD LEBOVITS PART 07
Justice
aoe. anne anne anne INDEX NO. 161105/2021
FIFTH PARTNERS LLC, MOTION SEQ. NO. 002 003 004
Plaintiff,
-Vv-
DECISION + ORDER ON
PUNCH HOUSE FLATIRON LLC,
MOTION
JOSEPH W. FOLEY, and NADA VASILIJEVIC,
Defendants.
aoe. anne anne nana
The following e-filed documents, listed by NYSCEF document number (Motion 002) 48, 49, 50, 51, 52,
53, 54
were read on this motion for SUPPLEMENTAL MONEY JUDGMENT
The following e-filed documents, listed by NYSCEF document number (Motion 003) 55, 56, 57, 58, 59,
60, 61, 62, 63, 64, 65, 66, 67, 68, 74, 75, 81
were read on this motion to RENEW/REARGUE
The following e-filed documents, listed by NYSCEF document number (Motion 004) 69
were read on this motion to EXTEND TIME
Thi is a commercial-landlord-tenant action, brought by plaintiff-landlord, Fifth Partners
LLC, agai t defendant-tenant, Punch House Flatiron LLC, and defendants-guarantors, Joseph
W. Foley and Nada Vasilijevic. On a prior motion, this court granted summary judgment to
plaintiff, and awarded a money judgment of $232,017.95. See Fifth Partners LLC v Punch House
Flatiron LLC, 2023 NY Slip Op 31375[U], at *6 [Sup Ct, NY County Apr. 26, 2023].) This
court also granted plaintiff leave to seek entry of a supplemental judgment for the amount of its
reasonable attorney fees. (/d.)
On motion sequence 002, plaintiff moves for an award of attorney fees. On motion
sequence 003, guarantors move for leave to renew and reargue. On motion sequence 004,
guarantors request an extension of their time to appeal, given the pending reargument/renewal
motion. The three motions are consolidated here for disposition. Plaintiff's motion is granted.
Guarantors’ motions are denied.
Because the disposition of guarantors’ motion for leave to reargue and renew could affect
whether plaintiff is entitled to collect attorney fees, this court deals with the reargument/renewal
motion first.
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NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 09/21/2023
(FILED: NEW YORK COUNTY CLERK 09/21/2023 01:03 PM INDEX NO. 161105/2021
NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 09/21/2023
1. A motion for leave to reargue “shall be based upon matters of fact or law allegedly
overlooked or misapprehended by the court in determining the prior motion.” (CPLR 2221 [d]).
A motion for leave to renew must be based on “new facts not offered on the prior motion that
would change the prior determination,” coupled with “reasonable justification for the failure to
present such facts on the prior motion.” (CPLR 2221 [e].)
Guarantors, proceeding pro se, argue, in effect, that numerous pieces of documentary
evidence, provided by guarantors on this motion, warrant both reargument and renewal. But
those documents have not been properly put before this court.
The means by which guarantors seek to introduce the evidence on which they rely is a
document styled “Notice of Motion for Reconsideration.” (NYSCEF No. 55.) This document,
although it contains material that would typically be found in a notice of motion, is, in substance,
more akin to an affidavit. (See id.) But the maker of an affidavit must swear or affirm before a
notary, under penalty of perjury, that the contents of the affidavit are true. (See Lillo-Arouca v
Masoud, 163 AD3d 646, 647 [2d Dept 1018] [holding that the motion court “properly declined
to consider the ‘affidavits’ of the defendants’ neighbors,” absent any “indication that the
neighbors had been sworn”].)
The “Notice of Motion” document, although signed, does not represent that its contents
are true or made on penalty of perjury and is not notarized. Although “no specific form of oath
[is] required in this State,” (Collins v AA Trucking Renting Corp., 209 AD2d 363, 363 [1st Dept
1994}), an oath in some form must still be present and notarized. Guarantors also rely, in part, on
an “affidavit” of Nada Vasilijevic. (See NYSCEF No. 66.) But that document, although reciting
that the affiant is “duly sworn” and makes representations “under the penalty of perjury”
(NYSCEF No. 66 at 1), is neither signed nor notarized. (See id. at 2.)
Given these basic deficiencies, the “Notice of Motiot » and, therefore, the various
exhibits attached to that document including the putative Vasilijevic affidavit—may not properly
be considered by this court. That guarantors have chosen “to proceed pro se ha[s] no effect on
[their] burden to present legally competent evidence” in support of their motion. (Duffen v State,
245 AD2d 653, 654 [3d Dept 1997] [italics omitted].) Guarantors’ renewal/reargument motion is
denied.
2. Guarantors also move for an extension of time to appeal, because they “require[]
additional time to prepare and file an appeal, depending on the outcome of the motion for
reconsideration.” (NYSCEF No. 69.) But, absent limited circumstances not present here, the
CPLR bars this court from extending the time to appeal. (CPLR 5514 [c].) Guarantors’ extension
request is denied.'
| Before the return date of this motion, guarantors timely e-filed a document styled “Notice of
Appeal” in letter format. (NYSCEF No. 73.) The clerk’s office returned the notice of appeal for
correction because it was not in proper form, providing instructions on the information required
to be included in the notice of appeal and how to refile. Guarantors did not then refile the notice
of appeal.
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NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 09/21/2023
(FILED: NEW YORK COUNTY CLERK 09/21/2023 01:03 PM INDEX NO. 161105/2021
NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 09/21/2023
3. Plaintiff moves without opposition for an award of $21,190.71, representing attorney
fees and disbursements incurred in this action. To support this motion, plaintiff provides an
attorney affirmation, supported by detailed invoices and a summary chart. (See NYSCEF Nos.
49, 51, 52.) This court sfied that the hourly rates, and hours billed, by plaintiff's counsel,
are reasonable. Plaintiffs motion is granted with respect to the fees requested, $20,174.10. (See
NYSCEF No. 52 [summary chart].) Plaintiff also seeks $1,016.61 in disbursements. (See id.) But
the money judgment entered upon this court’s summary-judgment order already included $600 in
disbursements; and it is not clear from plaintiff's papers on the current motion whether any
overlap exists between that sum and the disbursements requested now. The court therefore
reduces the requested $1,016.61 by $600.
Accordingly, it is
ORDERED that the branch of guarantors’ motion seeking leave to reargue (mot seq 003)
is denied; and it is further
ORDERED that the branch of guarantors’ motion seeking leave to renew (mot seq 003) is
denied; and it is further
ORDERED that guarantors’ motion for an extension of time to appeal (mot seq 004) is
denied; and it is further
ORDERED that plaintiff's motion for entry of a supplemental judgment for the amount
of its reasonable attorney fees (mot seq 002) is granted in part and denied in part, and plaintiffis
awarded a supplemental money judgment against defendants, jointly and severally, of
$20,590.71; and it is further
ORDERED that plaintiff serve a copy of this order with notice of its entry on all parties
and on the office of the County Clerk, which shall enter judgment accordingly.
9/21/2023
HON. GERALD LEBOVTS
— J.S.C, ——
DATE
CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED [x] cenen GRANTED IN PART [J omer
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECKIF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT [_] Rererence
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Preview
FILED: NEW YORK COUNTY CLERK 09/21/2023 01:13 PM INDEX NO. 161105/2021 NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 09/21/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY RSOLe SSL OF SSL NEW YORK Sat AS, | Index No.: 161105/2021 FIFTH PARTNERS LLC, I Plaintiff, | NOTICE OF ENTRY OF -against- | DECISION & ORDER ON | MOTION PUNCH HOUSE FLATIRON LLC, JOSEPH W. FOLEY I and NADA VASILIJEVIC, Mot. Seq. Nos. 002, 003, 004 Defendants. -ea---- +--+. PLEASE TAKE NOTICE, that a Decision and Order on Motion dated September 21, 2023, of the Hon. Gerald Lebovits, J.S.C., of which the within is a true copy, was duly entered and filed in the office of the County Clerk of New York County on September 21, 2023 Dated: New York, New York September 21, 2023 BORAH, GOLDSTEIN, ALTSCHULER, NAHINS & GOIDEL, P.C, By: yh (Ila ollie [ GOSHUA NADELBACH Attorneys for Plaintiff 377 Broadway, 6" Floor New York, New York 10013 (212) 431-1300 x 644 To: Punch House Flatiron LLC 19 West 21st Street New York, NY 10010 Joseph W. Foley 56 Pierrepont Street, #14 Brooklyn, NY 11201 Nada Vasilijevic 56 Pierrepont Street, #14 Brooklyn, NY 11201 Nada Vasilijevic 70 Irving Place, Apt. 6D New York Ny 10003 lof 4 INDEX NO. 161105/2021 NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 09/21/2023 (FILED: NEW YORK COUNTY CLERK 09/21/2023 01:03 PM INDEX NO. 161105/2021 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 09/21/2023 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. GERALD LEBOVITS PART 07 Justice aoe. anne anne anne INDEX NO. 161105/2021 FIFTH PARTNERS LLC, MOTION SEQ. NO. 002 003 004 Plaintiff, -Vv- DECISION + ORDER ON PUNCH HOUSE FLATIRON LLC, MOTION JOSEPH W. FOLEY, and NADA VASILIJEVIC, Defendants. aoe. anne anne nana The following e-filed documents, listed by NYSCEF document number (Motion 002) 48, 49, 50, 51, 52, 53, 54 were read on this motion for SUPPLEMENTAL MONEY JUDGMENT The following e-filed documents, listed by NYSCEF document number (Motion 003) 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 74, 75, 81 were read on this motion to RENEW/REARGUE The following e-filed documents, listed by NYSCEF document number (Motion 004) 69 were read on this motion to EXTEND TIME Thi is a commercial-landlord-tenant action, brought by plaintiff-landlord, Fifth Partners LLC, agai t defendant-tenant, Punch House Flatiron LLC, and defendants-guarantors, Joseph W. Foley and Nada Vasilijevic. On a prior motion, this court granted summary judgment to plaintiff, and awarded a money judgment of $232,017.95. See Fifth Partners LLC v Punch House Flatiron LLC, 2023 NY Slip Op 31375[U], at *6 [Sup Ct, NY County Apr. 26, 2023].) This court also granted plaintiff leave to seek entry of a supplemental judgment for the amount of its reasonable attorney fees. (/d.) On motion sequence 002, plaintiff moves for an award of attorney fees. On motion sequence 003, guarantors move for leave to renew and reargue. On motion sequence 004, guarantors request an extension of their time to appeal, given the pending reargument/renewal motion. The three motions are consolidated here for disposition. Plaintiff's motion is granted. Guarantors’ motions are denied. Because the disposition of guarantors’ motion for leave to reargue and renew could affect whether plaintiff is entitled to collect attorney fees, this court deals with the reargument/renewal motion first. 1 of 3 20f 4 INDEX NO. 161105/2021 NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 09/21/2023 (FILED: NEW YORK COUNTY CLERK 09/21/2023 01:03 PM INDEX NO. 161105/2021 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 09/21/2023 1. A motion for leave to reargue “shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion.” (CPLR 2221 [d]). A motion for leave to renew must be based on “new facts not offered on the prior motion that would change the prior determination,” coupled with “reasonable justification for the failure to present such facts on the prior motion.” (CPLR 2221 [e].) Guarantors, proceeding pro se, argue, in effect, that numerous pieces of documentary evidence, provided by guarantors on this motion, warrant both reargument and renewal. But those documents have not been properly put before this court. The means by which guarantors seek to introduce the evidence on which they rely is a document styled “Notice of Motion for Reconsideration.” (NYSCEF No. 55.) This document, although it contains material that would typically be found in a notice of motion, is, in substance, more akin to an affidavit. (See id.) But the maker of an affidavit must swear or affirm before a notary, under penalty of perjury, that the contents of the affidavit are true. (See Lillo-Arouca v Masoud, 163 AD3d 646, 647 [2d Dept 1018] [holding that the motion court “properly declined to consider the ‘affidavits’ of the defendants’ neighbors,” absent any “indication that the neighbors had been sworn”].) The “Notice of Motion” document, although signed, does not represent that its contents are true or made on penalty of perjury and is not notarized. Although “no specific form of oath [is] required in this State,” (Collins v AA Trucking Renting Corp., 209 AD2d 363, 363 [1st Dept 1994}), an oath in some form must still be present and notarized. Guarantors also rely, in part, on an “affidavit” of Nada Vasilijevic. (See NYSCEF No. 66.) But that document, although reciting that the affiant is “duly sworn” and makes representations “under the penalty of perjury” (NYSCEF No. 66 at 1), is neither signed nor notarized. (See id. at 2.) Given these basic deficiencies, the “Notice of Motiot » and, therefore, the various exhibits attached to that document including the putative Vasilijevic affidavit—may not properly be considered by this court. That guarantors have chosen “to proceed pro se ha[s] no effect on [their] burden to present legally competent evidence” in support of their motion. (Duffen v State, 245 AD2d 653, 654 [3d Dept 1997] [italics omitted].) Guarantors’ renewal/reargument motion is denied. 2. Guarantors also move for an extension of time to appeal, because they “require[] additional time to prepare and file an appeal, depending on the outcome of the motion for reconsideration.” (NYSCEF No. 69.) But, absent limited circumstances not present here, the CPLR bars this court from extending the time to appeal. (CPLR 5514 [c].) Guarantors’ extension request is denied.' | Before the return date of this motion, guarantors timely e-filed a document styled “Notice of Appeal” in letter format. (NYSCEF No. 73.) The clerk’s office returned the notice of appeal for correction because it was not in proper form, providing instructions on the information required to be included in the notice of appeal and how to refile. Guarantors did not then refile the notice of appeal. 2 of 3 3 0f 4 INDEX NO. 161105/2021 NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 09/21/2023 (FILED: NEW YORK COUNTY CLERK 09/21/2023 01:03 PM INDEX NO. 161105/2021 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 09/21/2023 3. Plaintiff moves without opposition for an award of $21,190.71, representing attorney fees and disbursements incurred in this action. To support this motion, plaintiff provides an attorney affirmation, supported by detailed invoices and a summary chart. (See NYSCEF Nos. 49, 51, 52.) This court sfied that the hourly rates, and hours billed, by plaintiff's counsel, are reasonable. Plaintiffs motion is granted with respect to the fees requested, $20,174.10. (See NYSCEF No. 52 [summary chart].) Plaintiff also seeks $1,016.61 in disbursements. (See id.) But the money judgment entered upon this court’s summary-judgment order already included $600 in disbursements; and it is not clear from plaintiff's papers on the current motion whether any overlap exists between that sum and the disbursements requested now. The court therefore reduces the requested $1,016.61 by $600. Accordingly, it is ORDERED that the branch of guarantors’ motion seeking leave to reargue (mot seq 003) is denied; and it is further ORDERED that the branch of guarantors’ motion seeking leave to renew (mot seq 003) is denied; and it is further ORDERED that guarantors’ motion for an extension of time to appeal (mot seq 004) is denied; and it is further ORDERED that plaintiff's motion for entry of a supplemental judgment for the amount of its reasonable attorney fees (mot seq 002) is granted in part and denied in part, and plaintiffis awarded a supplemental money judgment against defendants, jointly and severally, of $20,590.71; and it is further ORDERED that plaintiff serve a copy of this order with notice of its entry on all parties and on the office of the County Clerk, which shall enter judgment accordingly. 9/21/2023 HON. GERALD LEBOVTS — J.S.C, —— DATE CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION GRANTED [x] cenen GRANTED IN PART [J omer APPLICATION: SETTLE ORDER SUBMIT ORDER CHECKIF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT [_] Rererence 3 of 3 40f 4