FILED: NASSAU COUNTY CLERK 09/20/2023 08:51 PM
`NYSCEF DOC. NO. 16
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`INDEX NO. 607313/2023
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`RECEIVED NYSCEF: 09/20/2023
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`Index No. 607313/2023
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NASSAU
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`1616 PRESIDENT STREET ASSOCIATES
`LLC,
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`Plaintiff,
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`-against-
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`GLENDON FRASER,
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`Defendant.
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`APPENDIX TO MEMORANDUM OF LAW IN SUPPORT OF
`DEFENDANT’S MOTION TO DISMISS AND OTHER RELIEF
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`1 of 130
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`BROOKLYN LEGAL SERVICES
`Parker Winship, Esq.
`1709 Saint Marks Avenue, 2nd Floor
`Brooklyn, NY 11233
`Phone: (718) 237-5516
`Email: pwinship@lsnyc.org
`Attorneys for Defendant
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`

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`FILED: NASSAU COUNTY CLERK 09/20/2023 08:51 PM
`NYSCEF DOC. NO. 16
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`INDEX NO. 607313/2023
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`RECEIVED NYSCEF: 09/20/2023
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`665-75 Eleventh Ave. Realty Corp. v. Schlanger
`
`Supreme Court of New York, Appellate Division, First Department
`
`October 28, 1999, Decided ; October 28, 1999, Entered
`
`1916
`
`Reporter
`265 A.D.2d 270 *; 697 N.Y.S.2d 270 **; 1999 N.Y. App. Div. LEXIS 10880 ***
`
`665-75 Eleventh Avenue Realty Corp., Appellant, v.
`Janet L. Schlanger, as Personal Representative of the
`Estate of Martin Schlanger, Deceased, Respondent.
`
`Opinion
`
`Subsequent History: [***1] The Name of this Case
`has been Corrected September 7, 2000.
`
`Case Summary
`
`Procedural Posture
`Plaintiff appealed the order of the Supreme Court, New
`York County (New York) denying plaintiff's motion for
`summary judgment in favor of defendant dismissing the
`claim in a landlord-tenant action.
`
`Overview
`Plaintiff
`landlord commenced an action against
`defendant, president of a realty corporation, after
`plaintiff failed to pay rent. The judgments remained
`unsatisfied, so plaintiff commenced an action against
`defendant, seeking enforcement of the guaranty he
`executed. Plaintiff argued on appeal that the doctrine of
`collateral estoppel barred the guarantor's position that
`no extension of the lease existed between the parties.
`The court found that collateral estoppel only arose if a
`fact was decided by a court of competent jurisdiction,
`which would then be deemed binding in any further
`proceeding involving the party against whom it was
`decided. It was undisputed that there was no written
`lease extension,
`therefore
`the guaranty
`lapsed,
`releasing defendant from liability under the lease.
`
`Outcome
`lease
`there was no written
`Judgment affirmed;
`extension beyond a certain date, the guaranty lapsed,
`releasing defendant from liability under the lease.
`
`Counsel: For Plaintiff-Appellant: Daniel Finkelstein.
`
`For Defendant-Respondent: Howard J. Goldstein.
`
`Judges: Concur--Rosenberger, J. P., Tom, Mazzarelli,
`Saxe and Buckley, JJ.
`
` [*270] [**271] Order, Supreme Court, New York
`County (Emily Goodman, J.), entered September 30,
`1998, which insofar as appealed from, denied plaintiff's
`motion for summary judgment, unanimously modified,
`on the law, and upon a search of the record, summary
`judgment granted in favor of defendant dismissing the
`complaint, and as so modified, affirmed, without costs.
`The Clerk is directed to enter judgment in favor of
`defendant-respondent dismissing the complaint.
`
`The facts are undisputed. On or about October 13,
`1987, Factice,
`Inc., a closely-held
`family-owned
`company, entered into a written lease with plaintiff-
`landlord 665-75 Eleventh Avenue Realty Corp. The
`original lease was executed by defendant's decedent
`Martin Schlanger, in his capacity as president of
`Factice. Simultaneously, he also executed a separate
`written guaranty, which provided in pertinent part: "The
`Guarantor further agrees that this guaranty shall remain
`and continue [***2] in full force and effect as to any
`renewal, change or extension of the Lease."
`
`The lease by its terms ended on September 30, 1992,
`and from October 1992 through June 1995 Factice and
`plaintiff-landlord entered into 25 written extensions of
`the lease. The final written extension agreement was
`dated June 1995 (date unspecified), extending the lease
`to June 30, 1995.
`
`Factice remained as a month-to-month tenant after the
`last written lease extension and paid monthly rent at the
`rate of $ 8,000 for the months of July, August and
`September 1995. Beginning in October [**272] 1995,
`Factice failed to pay rent and thereafter a non-payment
`proceeding was commenced against Factice claiming
`rents through June 1996. Factice appeared in this non-
`payment action and asserted affirmative defenses,
`including that the lease had expired and that no written
`rental extension agreement existed. The Civil Court
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`2 of 130
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`FILED: NASSAU COUNTY CLERK 09/20/2023 08:51 PM
`NYSCEF DOC. NO. 16
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`Page 2 of 2
`265 A.D.2d 270, *270; 697 N.Y.S.2d 270, **272; 1999 N.Y. App. Div. LEXIS 10880, ***2
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`INDEX NO. 607313/2023
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`awarded a full money judgment against Factice, Inc., as
`well as a later money judgment for additional rent.
`
`Since the judgments remained unsatisfied, plaintiff
`commenced an action against Martin Schlanger,
`seeking enforcement of the guaranty he executed.
`Defendant's decedentSchlanger (now [***3] deceased)
`interposed an answer containing various affirmative
`defenses, including the same defense raised [*271] by
`Factice, Inc. in the summary non-payment proceeding,
`i.e., claiming that no lease extension existed between
`the parties after June 1995. Both sides moved for
`summary
`judgment. The Supreme Court
`(Emily
`Goodman, J.), granted the landlord's motion to the
`extent of striking each of the guarantor's affirmative
`defenses, but denied summary judgment. The landlord
`appeals, claiming that it was entitled to summary
`judgment on its guaranty claims.
`
`The landlord's principal argument on appeal is that the
`doctrine of collateral estoppel bars the guarantor's
`position that no extension of the lease existed between
`the parties, because the Civil Court had previously ruled
`that the corporate tenant was liable for the rent and the
`guarantor was in privity with the corporate tenant.
`
`However, the Civil Court made no findings with respect
`to whether or not there was an extension of the lease
`after June 30, 1995. Collateral estoppel only arises if a
`fact
`is decided by a court of competent [***4]
`jurisdiction, which would then be deemed binding in any
`further proceeding involving the party against whom it
`was decided. The money judgments rendered by the
`Civil Court for the period subsequent to the final written
`extensions of the lease were presumably for use and
`occupancy, to which the landlord would be entitled upon
`expiration of the lease.
`
`The terms of the guaranty, which are to be strictly
`construed in favor of a private guarantor (see, Levine v
`Segal, 256 AD2d 199, 200), only create an obligation on
`the part of the guarantor as to "any renewal, change or
`extension of the Lease." Since a "guarantor should not
`be bound beyond the express terms of his guarantee"
`(Wesselman v Engel Co., 309 NY 27, 30), and since it is
`undisputed that there was no written lease extension
`beyond June 30, 1995, the guaranty lapsed, releasing
`the defendant's decedent from liability under the lease.
`
`Concur--Rosenberger, J. P., Tom, Mazzarelli, Saxe and
`Buckley, JJ.
`
`End of Document
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`3 of 130
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`FILED: NASSAU COUNTY CLERK 09/20/2023 08:51 PM
`NYSCEF DOC. NO. 16
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`INDEX NO. 607313/2023
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`RECEIVED NYSCEF: 09/20/2023
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`952 Assoc., LLC v. Palmer
`
`Supreme Court of New York, Appellate Division, First Department
`
`June 3, 2008, Decided; June 3, 2008, Entered
`
`3813N, 113733/07
`
`Reporter
`52 A.D.3d 236 *; 859 N.Y.S.2d 138 **; 2008 N.Y. App. Div. LEXIS 4794 ***; 2008 NY Slip Op 4944 ****
`contention of the tenant's breach. The central issue was
`the same in both proceedings, so the sua sponte grant
`of a stay pending resolution of
`the Civil Court
`proceeding was not improper.
`
` [****1] 952 Associates, LLC, Appellant, v Ann Palmer,
`Respondent.
`
`Subsequent History: Related proceeding at 952
`Assoc. LLC v. Palmer, 21 Misc 3d 126A, 873 NYS2d
`235, 2008 N.Y. Misc. LEXIS 5567, 2008 NY Slip Op
`51919U (N.Y. App. Term, Sept. 23, 2008)
`
`Case Summary
`
`Procedural Posture
`In an action between appellant owner and respondent
`tenant, alleging
`that
`the
`tenant breached
`the
`confidentiality provision of a settlement agreement, the
`Supreme Court, New York County (New York), denied
`the owner's motion to stay and remove a Civil Court
`proceeding for consolidation with the instant action, and
`stayed the action pending resolution of the Civil Court
`proceeding. The owner appealed.
`
`Overview
`The tenant agreed in the Civil Court to a judgment of
`eviction and to vacate the premises in exchange for $
`550,000. The appellate court found that the owner's
`argument that it was unable to provide the tenant with
`copies of the settlement between the remaining rent
`stabilized tenant and the prospective purchaser was
`unavailing. The plain language of the settlement made it
`clear that the owner would provide not only any
`agreement it entered into with the remaining rent
`stabilized tenant, but any other agreements or writing or
`documents related to any compensation received by the
`tenant for her surrendering and vacating her apartment
`at the premises. The appellate court rejected the
`owner's argument that the Civil Court proceeding should
`have been removed to the Supreme Court because it
`sought substantial disclosure because disclosure may
`have been utilized by leave of court under CPLR 408.
`The Civil Court proceeding involved an enforcement
`action
`in which
`the owner willingly submitted
`its
`
`Outcome
`The judgment was affirmed.
`
`Counsel: [***1] Grimble & LoGuidice, LLC, New York
`(Robert Grimble of counsel), for appellant.
`
`John D. Gorman, New York, for respondent.
`
`Judges: Andrias, J.P., Gonzalez, Moskowitz,
`DeGrasse, JJ. Concur--Andrias, J.P., Gonzalez,
`Moskowitz and DeGrasse, JJ.
`
`Opinion
`
` [*236] [**139] Order, Supreme Court, New York
`County (Marylin G. Diamond, J.), entered December 26,
`2007, which denied plaintiff's motion to stay and remove
`a Civil Court proceeding for consolidation with the
`instant action, and stayed this action pending resolution
`of the Civil Court proceeding, unanimously affirmed,
`with costs.
`
`Defendant agreed in Civil Court to the entry of a
`judgment of eviction and to vacate the premises in
`exchange for $ 550,000, in accordance with NY City
`Civil Court Act § 204. The Housing Part of Civil Court
`has the same subject matter jurisdiction to compel
`compliance with this "so-ordered" settlement agreement
`(see CPLR 5221 [a] [3]; NY City Civ Ct Act § 1508) as
`would the Supreme Court (see NY City Civ Ct Act §
`212). Once such jurisdiction is established, Civil Court is
`able to hear related matters, such as plaintiff's cross
`motion
`to disgorge disputed
`funds, and
`the
`determination of monies due defendant, pursuant to its
`adjunct power under section 212.
`
`Plaintiff's argument that it was unable to provide
`defendant [***2] with copies of the settlement between
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`4 of 130
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`FILED: NASSAU COUNTY CLERK 09/20/2023 08:51 PM
`NYSCEF DOC. NO. 16
`RECEIVED NYSCEF: 09/20/2023
`Page 2 of 2
`52 A.D.3d 236, *236; 859 N.Y.S.2d 138, **139; 2008 N.Y. App. Div. LEXIS 4794, ***2; 2008 NY Slip Op 4944, ****1
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`INDEX NO. 607313/2023
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`the remaining rent stabilized tenant and the prospective
`purchaser is unavailing. The plain language of the
`settlement makes it clear that plaintiff would provide not
`only any agreement it entered into with the remaining
`rent stabilized tenant, but "any other agreements or
`writing or documents related to any compensation
`received by [the tenant] for her surrendering and
`vacating her apartment at the Premises."
`
` [**140] We reject plaintiff's argument that the Civil
`Court proceeding must be removed to Supreme Court
`because it seeks substantial disclosure. A summary
`proceeding pursuant to the Real Property Actions and
`Proceedings Law is a special proceeding (CPLR art 4)
`in which disclosure may be utilized by leave of court
`(CPLR 408; McQueen v Grinker, 158 AD2d 355, 359,
`551 NYS2d 493 [1990]). Stay of an action rests within
`the court's discretion (see Britt v International Bus
`Servs., 255 AD2d 143, 144, 679 NYS2d 616 [1998]).
`
`In general, only where the decision in one action will
`determine all the questions in the other action, and the
`judgment [*237] on one trial will dispose of the
`controversy in both, is a stay justified; this requires a
`complete identity of the parties, the causes of action
` [***3] and
`the
`judgment sought (Pierre Assoc. v
`Citizens Cas. Co. of N.Y., 32 AD2d 495, 497, 304
`NYS2d 158 [1969]). Here, the Civil Court proceeding
`involved an enforcement action in which plaintiff willingly
`submitted its contention of a breach on the part of
`defendant. The central issue in both the Civil Court
` [****2] proceeding and the Supreme Court action is
`whether defendant breached
`the
`confidentiality
`provision of her settlement agreement, thereby requiring
`defendant to disgorge all funds previously received from
`plaintiff. Accordingly, the IAS court's sua sponte grant of
`a stay pending resolution of the Civil Court proceeding
`was not improper. Concur--Andrias, J.P., Gonzalez,
`Moskowitz and DeGrasse, JJ.
`
`End of Document
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`5 of 130
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`FILED: NASSAU COUNTY CLERK 09/20/2023 08:51 PM
`NYSCEF DOC. NO. 16
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`INDEX NO. 607313/2023
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`RECEIVED NYSCEF: 09/20/2023
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`Arena Constr. Co. v. J. Sackaris & Sons, Inc.
`
`Supreme Court of New York, Appellate Division, Second Department
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`February 21, 2001, Submitted ; April 9, 2001, Decided
`
`2000-06205
`
`Reporter
`282 A.D.2d 489 *; 2001 N.Y. App. Div. LEXIS 3635 **; 722 N.Y.S.2d 884
`
`Arena Construction Co., Inc., Respondent, v. J.
`Sackaris & Sons, Inc., Appellant.
`
`O'Brien, J. P., Friedmann, Goldstein and Smith, JJ.,
`concur.
`
`End of Document
`
`Prior History: [**1] In an action to recover damages
`for breach of contract, the defendant appeals from an
`order of the Supreme Court, Westchester County
`(DiBlasi, J.), entered June 1, 2000, which denied its
`motion to transfer the venue of this action from the
`Supreme Court, Westchester County, to the Supreme
`Court, Kings County, pursuant to CPLR 503 (e).
`
`Counsel: Barbara H. Katsos, LLP, New York, N.Y., for
`appellant.
`
`Ross & Cohen, LLP, New York, N.Y. (Gerard Romski of
`counsel), for respondent.
`
`Judges: CORNELIUS J. O'BRIEN, J.P., WILLIAM D.
`FRIEDMANN, GLORIA GOLDSTEIN, NANCY E.
`SMITH, JJ. O'BRIEN, J.P., FRIEDMANN, GOLDSTEIN
`and SMITH, JJ., concur.
`
`Opinion
`
` [*489] Ordered that the order is reversed, with costs,
`the motion is granted, and the Clerk of the Supreme
`Court, Westchester County, is directed to transfer the
`file of the action to the Clerk of the Supreme Court,
`Kings County.
`
`the
`the assignment of
`The plaintiff accepted
`subcontracts at issue in the present case. The
`subcontracts specifically addressed the subject of venue
`for the purposes of potential litigation, and provided that
`the terms of the subcontracts were binding on all
`assignees. An assignee stands in the shoes of the
`assignor [**2] and takes the assignment subject to any
`preexisting liabilities
` (see, Blake & Assocs. v Aetna
`Cas. & Sur. Co., 255 AD2d 569; see also, CPLR 503
`[e]). Therefore, the motion to transfer the venue of this
`action is granted.
`
`6 of 130
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`FILED: NASSAU COUNTY CLERK 09/20/2023 08:51 PM
`NYSCEF DOC. NO. 16
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`INDEX NO. 607313/2023
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`RECEIVED NYSCEF: 09/20/2023
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`Ballas v. Virgin Media, Inc.
`
`Supreme Court of New York, Appellate Division, Second Department
`
`March 10, 2009, Decided
`
`2008-00433
`
` [****1] Nicole Ballas, Appellant, v Virgin Media, Inc., et
`al., Respondents. (Index No. 600014/07)
`
`Reporter
`60 A.D.3d 712 *; 875 N.Y.S.2d 523 **; 2009 N.Y. App. Div. LEXIS 1688 ***; 2009 NY Slip Op 1761 ****
`to disclose on the packaging of its cellular phone, or did
`not otherwise properly disclose, either the requirement
`that subscribers to its phone services periodically "top
`up" their accounts by paying additional sums of money
`to the defendants to increase the available balances on
`those accounts, or the consequences of failing to "top
`up." The defendants moved to dismiss the complaint
`pursuant to CPLR 3211 (a) (1) and (7). The Supreme
`Court granted the motion, and we affirm.
`
`Prior History: Ballas v. Virgin Media, Inc., 18 Misc. 3d
`1106(A), 856 N.Y.S.2d 22, 2007 N.Y. Misc. LEXIS 8467
`(Dec. 6, 2007)
`
`Counsel: [***1] Harwood Feffer LLP, New York, N.Y.
`(James G. Flynn, Robert I. Harwood, and Daniella Quitt
`of counsel), Moritt Hock Hamroff & Horowitz LLP,
`Garden City, N.Y. (Alan S. Hock of counsel), and Harold
`M. Somer, P.C., Westbury, N.Y., for appellant (one brief
`filed).
`
`Skadden, Arps, Slate, Meagher & Flom LLP, New York,
`N.Y. (Anthony J. Dreyer, Kenneth A. Plevan, and Allison
`K. Levine of counsel), for respondents.
`
`Judges: STEVEN W. FISHER, J.P., JOSEPH
`COVELLO, DANIEL D. ANGIOLILLO, THOMAS A.
`DICKERSON, JJ. FISHER, J.P., COVELLO,
`ANGIOLILLO and DICKERSON, JJ., concur.
`
`Opinion
`
` [*712] [**524] In a putative class action, inter alia, for
`injunctive and declaratory relief and to recover damages
`for breach of contract and violation of General Business
`Law §§ 349 and 350, the plaintiff appeals from an order
`of the Supreme Court, Nassau County (Austin, J.),
`entered December 11, 2007, which granted
`the
`defendants' motion to dismiss the complaint pursuant to
`CPLR 3211 (a) (1) and (7).
`
`Ordered that the order is affirmed, with costs.
`
`The plaintiff commenced this action alleging, inter alia,
`breach of contract and violation of General Business
`Law §§ 349 and 350 with respect to "pay-as-you-go"
`cellular phone services. Specifically, [***2] the plaintiff
`alleged, among other things, that the defendants failed
`
`"On a motion to dismiss the complaint pursuant to CPLR
`3211 (a) (7) for failure to state a cause of action, the
`court must afford the pleading a liberal construction,
`accept all facts as alleged in the pleading to be true,
`accord the plaintiff the benefit [*713] of every possible
`inference, and determine [****2] only whether the facts
`as alleged fit within any cognizable legal theory"
`(Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-
`704, 864 NYS2d 70 [2008]; see Leon v Martinez, 84
`NY2d 83, 87, 638 NE2d 511, 614 NYS2d 972 [1994];
`Smith v Meridian Techs., Inc., 52 AD3d 685, 686, 861
`NYS2d 687 [2008]). "On a motion to dismiss based
`upon documentary evidence, dismissal
`is only
`warranted
`if
`the documentary evidence submitted
`conclusively establishes
` [***3] a defense
`to
`the
`asserted claims as a matter of law" (Klein v Gutman, 12
`AD3d 417, 418, 784 NYS2d 581 [2004]; see CPLR 3211
`[a] [1]).
`
`Inasmuch as no contract was formed until subscribers
`chose a particular service plan and activated their
`phones, the defendants' failure to disclose the "topping
`up" requirements on the exterior packaging of the phone
`itself does not support a cause of action alleging breach
`of contract (cf. Brower v Gateway 2000, 246 AD2d 246,
`251, 676 NYS2d 569
`[1998]). Furthermore,
`the
`documentary evidence submitted by the defendants
`conclusively established
`that
`the
`"topping up"
`requirements were disclosed before the contract was
`entered into and subscribers had the option of selecting
`a plan that did not impose a "top up" requirement.
`Consequently, the Supreme Court properly dismissed
`the cause of action sounding in breach of contract.
`
`7 of 130
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`FILED: NASSAU COUNTY CLERK 09/20/2023 08:51 PM
`NYSCEF DOC. NO. 16
`RECEIVED NYSCEF: 09/20/2023
`Page 2 of 2
`60 A.D.3d 712, *713; 875 N.Y.S.2d 523, **524; 2009 N.Y. App. Div. LEXIS 1688, ***3; 2009 NY Slip Op 1761, ****2
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`INDEX NO. 607313/2023
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`The court also properly dismissed the plaintiff's claims
`alleging violations of [**525] General Business Law §§
`349 and 350. The documentary evidence established
`that the statements which the plaintiff claims to have
`constituted "false advertising" were not "deceptive or
`misleading in a material way" (Andre Strishak & Assoc.
`v Hewlett Packard Co., 300 AD2d 608, 609, 752 NYS2d
`400 [2002]), and that the allegedly [***4] deceptive
`business practices were not "likely
`to mislead a
`reasonable consumer acting reasonably under the
`circumstances" (Oswego Laborers' Local 214 Pension
`Fund v Marine Midland Bank, 85 NY2d 20, 26, 647
`NE2d 741, 623 NYS2d 529 [1995]). In any event, the
`plaintiff failed to allege that she suffered injury as a
`result of the allegedly deceptive business practices or
`false advertising (see Lonner v Simon Prop. Group, Inc.,
`57 AD3d 100, 866 NYS2d 239 [1995]; Vigiletti v Sears,
`Roebuck & Co., 42 AD3d 497, 838 NYS2d 785 [2007];
`Smith v Chase Manhattan Bank, USA, 293 AD2d 598,
`599, 741 NYS2d 100 [2002]; see also Donahue v
`Ferolito, Vultaggio & Sons, 13 AD3d 77, 78, 786 NYS2d
`153 [2004]; DeRiso v Synergy USA, 6 AD3d 152, 152-
`153, 773 NYS2d 563 [2004]).
`
`The plaintiff's remaining contentions are without merit.
`Fisher, J.P., Covello, Angiolillo and Dickerson, JJ.,
`concur. [See 18 Misc. 3d 1106A(A), 856 NYS2d 22,
`2007 NY Slip Op 52441(U).]
`
`End of Document
`
`8 of 130
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`

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`FILED: NASSAU COUNTY CLERK 09/20/2023 08:51 PM
`NYSCEF DOC. NO. 16
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`INDEX NO. 607313/2023
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`RECEIVED NYSCEF: 09/20/2023
`
`Belopolsky v. Renew Data Corp.
`
`Supreme Court of New York, Appellate Division, First Department
`
`June 26, 2007, Decided; June 26, 2007, Entered
`
`1435
`
`Reporter
`41 A.D.3d 322 *; 837 N.Y.S.2d 154 **; 2007 N.Y. App. Div. LEXIS 7861 ***; 2007 NY Slip Op 5563 ****
`Sweeny and Kavanagh, JJ.
`
` [****1] Alexander Belopolsky et al., Appellants, v
`Renew Data Corp. et al., Respondents. Index
`112589/06
`
`End of Document
`
`Counsel: [***1] Jonathan A. Willens, New York, for
`appellants.
`
`Dewey Pegno & Kramarsky LLP, New York (Thomas
`E.L. Dewey of counsel), for respondents.
`
`Judges: Concur--Sullivan, J.P., Buckley, Gonzalez,
`Sweeny and Kavanagh, JJ.
`
`Opinion
`
` [*322] [**155] Order, Supreme Court, New York
`County (Ira Gammerman, J.H.O.), entered February 26,
`2007, which stayed this action pending determination of
`the related case of Renaissance Technologies Corp. v
`Millennium Partners, L.P. (Index No. 03-603839),
`unanimously affirmed, without costs.
`
`This is an action to recover damages for alleged
`mishandling of confidential software. Upon due
`consideration of the goals of judicial economy, orderly
`procedure and the prevention of inequitable results (see
`Asher v Abbott Labs., 307 AD2d 211, 763 NYS2d 555
`[2003]), we conclude that the court did not exercise its
`discretion improvidently by staying this action pending
`resolution of the previously commenced related action
`(cf. Pierre Assoc. v Citizens Cas. Co. of N.Y., 32 AD2d
`495, 496, 304 NYS2d 158 [1969]). Even though there
`was not a complete identity of parties, there were
`overlapping issues and common questions of law and
`fact (see Minton v Minton, 277 AD2d 103, 717 NYS2d
`519 [2000]; Goodridge v Fernandez, 121 AD2d 942, 945
` [*323]
`, 505 NYS2d 144
`[1986]), and
`"the
`determination of [***2] the prior action may dispose of
`or limit issues which are involved in the subsequent
`action" (Buzzell v Mills, 32 AD2d 897, 301 NYS2d 645
`[1969]). Concur--Sullivan, J.P., Buckley, Gonzalez,
`
`9 of 130
`
`

`

`FILED: NASSAU COUNTY CLERK 09/20/2023 08:51 PM
`NYSCEF DOC. NO. 16
`
`INDEX NO. 607313/2023
`
`RECEIVED NYSCEF: 09/20/2023
`
`Breytman v. Olinville Realty, LLC
`
`Supreme Court of New York, Appellate Division, Second Department
`
`September 9, 2008, Decided
`
`2006-11049, 2007-02932, 2007-08892
`
`Reporter
`54 A.D.3d 703 *; 864 N.Y.S.2d 70 **; 2008 N.Y. App. Div. LEXIS 6672 ***; 2008 NY Slip Op 6787 ****
`provision denying that branch of the motion. As so
`modified, the court affirmed the order.
`
` [****1] Alexander Breytman, Appellant, v Olinville
`Realty, LLC, et al., Respondents. (Index No. 2423/06)
`
`Subsequent History: Reargument denied by Breytman
`v. Olinville Realty, LLC, 2008 N.Y. App. Div. LEXIS
`10393 (N.Y. App. Div. 2d Dep't, Dec. 3, 2008)
`
`Dismissed by Breytman v. Olinville Realty, LLC, 12
`N.Y.3d 879, 910 N.E.2d 1002, 2009 N.Y. LEXIS 1856,
`883 N.Y.S.2d 173 (2009)
`
`Prior History: Breytman v. Olinville Realty, LLC, 46
`A.D.3d 484, 850 N.Y.S.2d 9, 2007 N.Y. App. Div. LEXIS
`13289 (N.Y. App. Div. 1st Dep't, 2007)
`
`Case Summary
`
`Procedural Posture
`Plaintiff tenant sought review of the order of the
`Supreme Court, Kings County (New York), which, in the
`tenant's action to recover damages for personal injuries
`and breach of implied warranty of habitability, granted
`the motion of defendants, the tenant's landlord and
`various individuals, to dismiss the amended complaint.
`
`Overview
`On appeal, the court concluded that the trial court
`properly dismissed the cause of action alleging breach
`of the implied warranty of habitability since the facts as
`alleged did not fit within any cognizable legal theory.
`However, the amended complaint sufficiently alleged a
`cause of action against the landlord to recover damages
`for personal injuries caused by the landlord's negligence
`as the tenant's allegation that he suffered physical
`injuries when a portion of a wall in his apartment fell on
`him fit within a cognizable legal theory.
`
`Outcome
`The court modified that portion of the trial court's order
`that granted the landlord's motion to dismiss the tenant's
`personal
`injury claim and substituted
`therefor a
`
`Counsel: [***1] Alexander Breytman, New York, N.Y.,
`appellant, Pro se.
`
`Jaffe & Asher LLP, New York, N.Y. (Ira N. Glauber and
`Mark P. Monack of counsel), for respondents Olinville
`Realty, LLC, Olinville Realty Co., LLC, Weiner Realty
`Company, Weiner Realtors, Weiner-Mega, LLC, Weiner
`Realty Co., Pinnacle Holding Company, Pinnacle
`Holding Company, LLC, Pinnacle Bronx, LLC, Pinnacle
`Bronx North, LLC, Pinnacle Bronx South, LLC, Pinnacle
`Bronx West, LLC, Pinnacle Amsterdam, LLC, Pinnacle
`Flatbush, LLC, Pinnacle Hamilton, LLC, Pinnacle
`Holding Co. 1, LLC, Pinnacle Holding Co. 2, LLC,
`Pinnacle Holding Co. 3, LLC, Pinnacle Holding Co. 4,
`LLC, Pinnacle Holding Co. 5, LLC, Pinnacle Holding Co.
`6, LLC, Pinnacle Managing Co., LLC, Pinnacle
`Midwood, LLC, Pinnacle Parkway, LLC, Pinnacle
`Uptown, LLC, Praediumgroup, LLC, Kingbridge Realty
`Associates, LLC, Underhill Realty, LLC, Federal Realty,
`LLC, Joel Weiner, Harry Hirsh, Effie Galato, Donna
`Fabrizio, Sadat Rugova, and John Doe "Mr. Foster.".
`
`Judges: STEVEN W. FISHER, J.P., JOSEPH
`COVELLO, DANIEL D. ANGIOLILLO, ARIEL E. BELEN,
`JJ. FISHER, J.P., COVELLO, ANGIOLILLO and
`BELEN, JJ., concur.
`
`Opinion
`
` [*703] [**70] In an action, inter alia, to recover
`damages for personal injuries and [***2] breach of
`implied warranty of habitability, the plaintiff appeals (1),
`as limited by his brief, from stated portions of an order of
`the Supreme Court, Kings County (Ruditzky, J.), dated
`October 20, 2006, which, among other things, granted
`the defendants' motion [**71] to dismiss the complaint
`pursuant to, inter alia, CPLR 3211 (a) (7), (2) from an
`order of same court (Held, J.), dated March 1, 2007,
`which, among other things, granted, in effect, the
`
`10 of 130
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`FILED: NASSAU COUNTY CLERK 09/20/2023 08:51 PM
`NYSCEF DOC. NO. 16
`RECEIVED NYSCEF: 09/20/2023
`Page 2 of 2
`54 A.D.3d 703, *703; 864 N.Y.S.2d 70, **71; 2008 N.Y. App. Div. LEXIS 6672, ***2; 2008 NY Slip Op 6787, ****1
`
`INDEX NO. 607313/2023
`
`Morris, 306 AD2d 449, 451, 763 NYS2d 622 [2003];
`Doria v Masucci, 230 AD2d 764, 765, 646 NYS2d 363
`[1996]). The Supreme Court was correct in dismissing
`the plaintiff's cause of action alleging breach of the
`implied warranty of habitability, asserted in the amended
`complaint, since the facts as alleged did not fit within
`any cognizable legal theory.
`
`the Supreme Court's
`to
`contrary
`However,
`determination,
`the amended complaint sufficiently
`alleged a cause of action against the defendant Olinville
`Realty, LLC, the plaintiff's landlord, to recover damages
`for personal
`injuries caused by
`that defendant's
`negligence. The plaintiff alleged that on January 26,
`2003, he suffered physical injuries when a portion of a
`wall in his apartment fell on him. When accepting all the
`facts as alleged in the amended complaint [***5] to be
`true and allowing the plaintiff the benefit of every
`possible inference, the facts as alleged fit within a
`cognizable legal theory.
`
` [**72] The plaintiff's remaining contentions are without
`merit. Fisher, J.P., Covello, Angiolillo and Belen, JJ.,
`concur. [****3]
`
`End of Document
`
`renewed motion of the defendants Olinville Realty, LLC,
`Olinville Realty Co., LLC, Olinville Realty, Weiner
`Realtors, Weiner Realty, LLC, Weiner Realty, Joel
`Weiner, Harry Hirsh, Donna Fabrizio, Effie Galato,
`"Forester," Sadat Rugova, and Bronx Pinnacle, LLC, to
`dismiss the amended complaint insofar as asserted
`against them pursuant to CPLR [****2] 3211 (a) (7),
`and (3) from an order of the same court (Held, J.), also
`dated March 1, 2007, which granted the motion of the
`defendants Rappaport, Hertz, Cherson and Rosenthal,
`P.C., and John Robalino to dismiss the amended
`complaint insofar as asserted against them pursuant to
`CPLR 3211 (a) (7) and (8).
`
`Ordered that the order dated October 20, 2006, is
`affirmed insofar as appealed from, without costs or
`disbursements; [***3] and it is further,
`
`Ordered that the first order dated March 1, 2007, is
`modified, on the law, by deleting the provision thereof
`granting that branch of the, in effect, renewed motion of
`the defendants Olinville Realty, LLC, Olinville Realty
`Co., LLC, Olinville Realty, Weiner Realtors, Weiner
`Realty, LLC, Weiner Realty, Joel Weiner, Harry Hirsh,
`Donna Fabrizio, Effie Galato, "Forester," Sadat Rugova,
`and Bronx Pinnacle, LLC, which was to dismiss the
`cause of action in the amended complaint to recover
`damages
`for negligence causing personal
`injuries
`insofar as asserted against the defendant Olinville
`Realty, LLC, and substituting
`therefor a provision
`denying that branch of the, in effect, renewed motion; as
`so modified, the order is affirmed, without costs or
`disbursements; and it is further,
`
`Ordered that the second order dated March 1, 2007,
`granting the motion of the defendants Rappaport, Hertz,
`Cherson and Rosenthal, P.C., and John Robalino to
`dismiss the amended complaint insofar as asserted
`against
`them,
`is affirmed, without
`costs or
`disbursements.
`
`On a motion to dismiss the complaint pursuant to CPLR
`3211 (a) (7) for failure to state a cause of action, the
`court must afford
`the pleading
` [***4] a
`liberal
`construction, accept all facts as alleged [*704] in the
`pleading to be true, accord the plaintiff the benefit of
`every possible inference, and determine only whether
`the facts as alleged fit within any cognizable legal theory
`(see Leon v Martinez, 84 NY2d 83, 87, 638 NE2d 511,
`614 NYS2d 972 [1994]; Asgahar v Tringali Realty, Inc.,
`18 AD3d 408, 795 NYS2d 68 [2005]). However, bare
`legal conclusions are not presumed to be true, nor are
`they accorded every favorable inference (see Morris v
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`11 of 130
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`FILED: NASSAU COUNTY CLERK 09/20/2023 08:51 PM
`NYSCEF DOC. NO. 16
`
`INDEX NO. 607313/2023
`
`RECEIVED NYSCEF: 09/20/2023
`
`Buhler v. French Woods Festival of Performing Arts, Inc.
`
`Supreme Court of New York, Appellate Division, First Department
`
`October 31, 1989
`
`No Number in Original
`
`Reporter
`154 A.D.2d 303 *; 546 N.Y.S.2d 591 **; 1989 N.Y. App. Div. LEXIS 13603 ***
`
`David Buhler, an Infant, by His Mother and Natural
`Guardian, Judith Buhler, et al., Respondents, v. French
`Woods Festival of the Performing Arts, Inc., et al.,
`Appellants
`
`Opinion
`
`Case Summary
`
`Procedural Posture
`Defendant summer camp appealed the decision entered
`by the Supreme Court, New York County (New York),
`which reversed its decision in a personal injury lawsuit
`by allowing plaintiffs, mother and child, to renew and
`reargue their motion for a change of venue, pursuant to
`N.Y. C.P.L.R. 510, 501, from the venue where the
`cause of action arose.
`
`Overview
`The child, a Florida resident, fractured his leg at the
`Delaware County summer camp. A lawsuit to recover
`damages followed, and the mother filed a motion to
`change the venue to New York County, the summer
`camp's official place of business. The summer camp
`opposed the motion, contending that the mother and
`child were bound by a venue provision in the contract
`that required them to litigate the lawsuit in Delaware
`County, where the cause of action arose. The mother
`argued that the contract