Voorhies Terrace Owners Corp. v. State Realty LLC

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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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

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~

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

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