throbber
FILED: NEW YORK COUNTY CLERK 08/20/2017 01:19 PM
`NYSCEF DOC. NO. 5
`
`INDEX NO. 654620/2017
`
`RECEIVED NYSCEF: 08/20/2017
`At IAS/Special Term Part ____ of
`the Supreme Court of the State of
`New York, held in and for the
`
`the
`County of New York at
`
`Courthouse located at 60 Centre
`
`Street, New York, New York on
`
`the ___ day of ________________
`201__
`
`
`
`Index No.: 654620/2017
`
`
`ORDER TO SHOW CAUSE
`
`(AMENDED)
`
`
`
`
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`
`
`
`
`Plaintiffs,
`
`
`
`
`
`
`
`PRESENT
`
`JUSTICE
`
`
`
`
`HON.
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`-------------------------------------------------------------------------X
`NIKIA NELSON,
`
`
`
`
`
`
`
`
`
`
`
`
`-against-
`
`
`
`
`
`
`
`
`
`
`
`HARLEM EAST LLC, SHANNON DOHERTY, MICHAEL
`SWEICA, JESSE ATIAS, ANGEL FABIAN, U.S. REALTY
`CORP (a/k/a GOLDMONT REALTY CORP d.b.a U.S.
`REALTY CORP), and John and Jane DOES #1-100
`
`First name of DEFENDANTS being fictitious
`And unknown to Plaintiff, and Persons intended
`to be added herein as Defendant(s)
`
`Defendants.
`
`
`
`
`
`-------------------------------------------------------------------------X
`
`
`
`UPON reading and filing the annexed affirmation of Ari Mor dated August 20, 2017, the
`
`exhibits annexed thereto (if any), and upon all the pleading and proceedings heretofore had
`
`herein, and sufficient reason appearing therefor:
`
`LET Defendant(s) HARLEM EAST LLC’s attorney(s) show cause at Room ____ of this
`
`Court to be held at the courthouse located at 60 Centre Street, NY, NY 10007 on the ___ day of
`
`_______________, 2017 at 9:30 o’clock in the forenoon of that day or as soon thereafter as
`
`counsel can be heard why an order should not be made and entered:
`
`a. For a Preliminary Injunction;
`
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`1 of 149
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`FILED: NEW YORK COUNTY CLERK 08/20/2017 01:19 PM
`NYSCEF DOC. NO. 5
`
`INDEX NO. 654620/2017
`
`RECEIVED NYSCEF: 08/20/2017
`
`b. Pursuant to CPLR 602(b), removing summary proceeding entitled Harlem East
`LLC v. Nikia Nelson, et al., under Index No.: 069302/2017.; and consolidating
`that proceeding with the herein action; and
`
`c. For such other and further relief as to this Court seems just and proper.
`
`ORDERED that pending a hearing and determination of this motion, all proceeding(s)
`
`between the above captioned parties are stayed, including but not limited to the pending
`
`summary proceeding entitled Harlem East LLC v. Nikia Nelson, et al., under Index No.:
`
`069302/2017.
`
` Sufficient cause being alleged, let service of copies of this order to show cause and the
`
`papers upon which the same have been based upon HARLEM EAST LLC’s counsel, all by
`
`overnight mail on or before ______________ ____, 2017, be deemed good and sufficient
`
`service thereof.
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`
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`
`
`ENTER:
`
`___________________________________
`J.S.C
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`2 of 149
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`FILED: NEW YORK COUNTY CLERK 08/20/2017 01:19 PM
`NYSCEF DOC. NO. 5
`
`INDEX NO. 654620/2017
`
`RECEIVED NYSCEF: 08/20/2017
`
`Index No.: 654620/2017
`
`
`
`
`
`
`
`
`
`Plaintiffs,
`
`
`
`
`
`
`
`
`
`
`
`
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`-------------------------------------------------------------------------X
`NIKIA NELSON,
`
`
`
`
`
`
`
`
`
`
`
`
`-against-
`
`
`
`
`
`
`
`
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`
`
`HARLEM EAST LLC, SHANNON DOHERTY, MICHAEL
`SWEICA, JESSE ATIAS, ANGEL FABIAN, U.S. REALTY
`CORP (a/k/a GOLDMONT REALTY CORP d.b.a U.S.
`REALTY CORP), and John and Jane DOES #1-100
`
`First name of DEFENDANTS being fictitious
`And unknown to Plaintiff, and Persons intended
`to be added herein as Defendant(s)
`
`Defendants.
`
`
`
`
`
`-------------------------------------------------------------------------X
`
`
`
`
`ORDER TO SHOW CAUSE (AMENDED)
`
`
`
`THE LAW OFFICES OF ARI MOR, ESQ., P.C.
`
`ATTORNEYS FOR PLAINTIFF
`
`347 E 65th St, #2RW, New York, NY 10065
`Email: ari.mor.esq@gmail.com
`Phone: (347) 850-0578
`
`
`
`
`
`
`Attorney(s) for
`
`
`
`
`
`
`
`
`
`Service of a copy of the within is hereby admitted.
`
`Dated:___________________________________
`
`
`____________________________________
`
`3 of 149
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`

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`FILED: NEW YORK COUNTY CLERK 08/20/2017 01:19 PM
`NYSCEF DOC. NO. 5
`
`INDEX NO. 654620/2017
`
`RECEIVED NYSCEF: 08/20/2017
`
`
`
`
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`
`
`Plaintiffs,
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`
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`
`Index No.: 654620/2017
`
`
`AFFIRMATION PURSUANT TO
`
`NYCRR § 202.7(F)
`
`
`
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`-------------------------------------------------------------------------X
`NIKIA NELSON,
`
`
`
`
`
`
`
`
`
`
`
`
`-against-
`
`
`
`
`
`
`
`
`
`
`
`HARLEM EAST LLC, SHANNON DOHERTY, MICHAEL
`SWEICA, JESSE ATIAS, ANGEL FABIAN, U.S. REALTY
`CORP (a/k/a GOLDMONT REALTY CORP d.b.a U.S.
`REALTY CORP), and John and Jane DOES #1-100
`
`First name of DEFENDANTS being fictitious
`And unknown to Plaintiff, and Persons intended
`to be added herein as Defendant(s)
`
`Defendants.
`
`
`
`
`
`-------------------------------------------------------------------------X
`
`
`
` ARI MOR, an attorney at law duly admitted to practice before the Courts of the State of
`
`New York, hereby affirms that the following statements are true under the penalties of perjury
`
`pursuant to CPLR 2106:
`
`1.
`
`On August 18, 2017, this office contacted HARLEM EAST LLC’s counsel
`
`GREEN
`
`and COHEN
`
`PC
`
`by
`
`email
`
`to:
`
`jason@greenandcohenlaw.com &
`
`michael@greenandcohenlaw.com. This office notified said Counsel that this office would be
`
`moving by order to show cause for temporary relief, on August 21, 2017 at 10:00 a.m., and that
`
`the motion would be brought before the Ex-Parte Office located 60 Centre Street, NY, NY 10007
`
`Dated: New York, New York
`August 20, 2017
`
`
`
`
`
`
`
`
`
` ______________________________
` ARI MOR
`(Rule 130-1.1-a)
`
`
`
`
`4 of 149
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`FILED: NEW YORK COUNTY CLERK 08/20/2017 01:19 PM
`NYSCEF DOC. NO. 5
`
`INDEX NO. 654620/2017
`
`RECEIVED NYSCEF: 08/20/2017
`
`Index No.: 654620/2017
`
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`
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`
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`Plaintiffs,
`
`
`
`
`
`
`
`
`
`
`
`
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`-------------------------------------------------------------------------X
`NIKIA NELSON,
`
`
`
`
`
`
`
`
`
`
`
`
`-against-
`
`
`
`
`
`
`
`
`
`
`
`HARLEM EAST LLC, SHANNON DOHERTY, MICHAEL
`SWEICA, JESSE ATIAS, ANGEL FABIAN, U.S. REALTY
`CORP (a/k/a GOLDMONT REALTY CORP d.b.a U.S.
`REALTY CORP), and John and Jane DOES #1-100
`
`First name of DEFENDANTS being fictitious
`And unknown to Plaintiff, and Persons intended
`to be added herein as Defendant(s)
`
`Defendants.
`
`
`
`
`
`-------------------------------------------------------------------------X
`
`
`
`AFFIRMATION PURSUANT TO NYCRR § 202.7(F)
`
`
`
`THE LAW OFFICES OF ARI MOR, ESQ., P.C.
`
`ATTORNEYS FOR PLAINTIFF
`
`347 E 65th St, #2RW, New York, NY 10065
`Email: ari.mor.esq@gmail.com
`Phone: (347) 850-0578
`
`
`
`
`
`
`Attorney(s) for
`
`
`
`
`
`
`
`
`
`Service of a copy of the within is hereby admitted.
`
`Dated:___________________________________
`
`
`____________________________________
`
`
`
`
`
`2
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`5 of 149
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`FILED: NEW YORK COUNTY CLERK 08/20/2017 01:19 PM
`NYSCEF DOC. NO. 5
`
`INDEX NO. 654620/2017
`
`RECEIVED NYSCEF: 08/20/2017
`
`Index No.: 654620/2017
`
`
`AFFIRMATION OF EMERGENCY
`
`
`
`
`
`
`
`
`Plaintiffs,
`
`
`
`
`
`
`
`
`
`
`
`
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`-------------------------------------------------------------------------X
`NIKIA NELSON,
`
`
`
`
`
`
`
`
`
`
`
`
`-against-
`
`
`
`
`
`
`
`
`
`
`
`HARLEM EAST LLC, SHANNON DOHERTY, MICHAEL
`SWEICA, JESSE ATIAS, ANGEL FABIAN, U.S. REALTY
`CORP (a/k/a GOLDMONT REALTY CORP d.b.a U.S.
`REALTY CORP), and John and Jane DOES #1-100
`
`First name of DEFENDANTS being fictitious
`And unknown to Plaintiff, and Persons intended
`to be added herein as Defendant(s)
`
`Defendants.
`
`
`
`
`
`-------------------------------------------------------------------------X
`
`
`Ari Mor, an attorney duly admitted to practice law before the Courts of the State of New
`
`York, hereby affirms the truth of the following upon information and belief and under penalty of
`
`perjury pursuant to CPLR § 2106:
`
`1.
`
`2.
`
`I am a solo practitioner with the Law Offices of Ari Mor, Esq., P.C.
`
`This office represents the Plaintiff(s) NIKIA NELSON (“Plaintiff”) in the above-
`
`captioned action.
`
`3.
`
`As such, I am fully familiar with the facts and circumstances hereinafter
`
`contained. The source of my knowledge and information being the materials maintained by this
`
`office in the course of the defense of this matter;
`
`4.
`
`Plaintiff currently has a Summary Proceeding pending which is returnable
`
`September 5, 2017 of which Plaintiff is hoping to consolidate into the herein matter.
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`6 of 149
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`FILED: NEW YORK COUNTY CLERK 08/20/2017 01:19 PM
`NYSCEF DOC. NO. 5
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`INDEX NO. 654620/2017
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`RECEIVED NYSCEF: 08/20/2017
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`5.
`
`Your affirmant is leaving the state August 21, 2017 at 7 pm and will not be able to
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`present the herein OSC on any other date prior to the now scheduled return date for the Summary
`
`Proceeding.
`
`6.
`
`This Motion must be entertained forthwith to prevent irreparable harm to the
`
`Plaintiff and for the sake of judicial economy.
`
`7.
`
`This is the earliest that this office could put together papers for the relief requested
`
`therein.
`
`
`
`To the best of my knowledge, information
`and belief,
`formed after an
`inquiry
`reasonable under the circumstances, the
`foregoing Affirmation,
`the papers upon
`which it is based, and the documents
`annexed thereto (if any), are not frivolous as
`defined in Part 130-1.1 of the Rules of the
`Chief Administrator of the Courts.
`
`
`
`
`
`
`
`______________________________
`ARI MOR (Rule 130-1.1-a)
`
`Dated: New York, New York
`August 20, 2017
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`7 of 149
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`FILED: NEW YORK COUNTY CLERK 08/20/2017 01:19 PM
`NYSCEF DOC. NO. 5
`
`INDEX NO. 654620/2017
`
`RECEIVED NYSCEF: 08/20/2017
`
`Index No.: 654620/2017
`
`
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`
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`
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`Plaintiffs,
`
`
`
`
`
`
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`
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`
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`
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`-------------------------------------------------------------------------X
`NIKIA NELSON,
`
`
`
`
`
`
`
`
`
`
`
`
`-against-
`
`
`
`
`
`
`
`
`
`
`
`HARLEM EAST LLC, SHANNON DOHERTY, MICHAEL
`SWEICA, JESSE ATIAS, ANGEL FABIAN, U.S. REALTY
`CORP (a/k/a GOLDMONT REALTY CORP d.b.a U.S.
`REALTY CORP), and John and Jane DOES #1-100
`
`First name of DEFENDANTS being fictitious
`And unknown to Plaintiff, and Persons intended
`to be added herein as Defendant(s)
`
`Defendants.
`
`
`
`
`
`-------------------------------------------------------------------------X
`
`
`
`
`
`
`AFFIRMATION OF EMERGENCY
`
`THE LAW OFFICES OF ARI MOR, ESQ., P.C.
`ATTORNEYS FOR PLAINTIFF
`347 E 65th St, #2RW, New York, NY 10065
`Email: ari.mor.esq@gmail.com
`Phone: (347) 850-0578
`
`
`
`
`
`
`Service of a copy of the within is hereby admitted.
`
`Dated:___________________________________
`
`
`____________________________________
`
`Attorney(s) for
`
`
`
`
`
`
`
`
`
`
`
`8 of 149
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`FILED: NEW YORK COUNTY CLERK 08/20/2017 01:19 PM
`NYSCEF DOC. NO. 5
`
`INDEX NO. 654620/2017
`
`RECEIVED NYSCEF: 08/20/2017
`
`Index No.: 654620/2017
`
`
`AFFIRMATION IN SUPPORT OF
`
`ORDER TO SHOW CAUSE
`
`
`
`
`
`
`Plaintiffs,
`
`
`
`
`
`
`
`
`
`
`
`
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`-------------------------------------------------------------------------X
`NIKIA NELSON,
`
`
`
`
`
`
`
`
`
`
`
`
`-against-
`
`
`
`
`
`
`
`
`
`
`
`HARLEM EAST LLC, SHANNON DOHERTY, MICHAEL
`SWEICA, JESSE ATIAS, ANGEL FABIAN, U.S. REALTY
`CORP (a/k/a GOLDMONT REALTY CORP d.b.a U.S.
`REALTY CORP), and John and Jane DOES #1-100
`
`First name of DEFENDANTS being fictitious
`And unknown to Plaintiff, and Persons intended
`to be added herein as Defendant(s)
`
`Defendants.
`
`
`
`
`
`-------------------------------------------------------------------------X
`
`
`Ari Mor, Esq., an attorney duly admitted to practice law before the Courts of the State of
`
`New York, hereby affirms the truth of the following upon information and belief and under
`
`penalty of perjury pursuant to CPLR § 2106:
`
`1.
`
`This office represents the Plaintiff(s) NIKIA NELSON (“NELSON” or
`
`“Plaintiff”), in the above-captioned action. As such, I am fully familiar with the facts and
`
`circumstances hereinafter contained. The source of my knowledge and information being the
`
`materials maintained by my office in the course of the defense of this matter, and
`
`communications with the Plaintiff herein.
`
`2.
`
`This Affirmation is submitted in support of Plaintiff’(s) motion, which seeks
`
`an Order:
`
`a) For a Preliminary Injunction;
`
`
`9 of 149
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`FILED: NEW YORK COUNTY CLERK 08/20/2017 01:19 PM
`NYSCEF DOC. NO. 5
`
`INDEX NO. 654620/2017
`
`RECEIVED NYSCEF: 08/20/2017
`
`b) Pursuant to CPLR 602(b), removing summary proceeding entitled Harlem East
`LLC v. Nikia Nelson, et al., under Index No.: 069302/2017.; and consolidating
`that proceeding with the herein action; and
`
`c) For such other and further relief as to this Court seems just and proper.
`
`BACKGROUND
`
`The relief requested herein has not been previously requested.
`
`At all times relevant to this action Plaintiff was and still is the tenant of record for
`
`3.
`
`4.
`
`the premises commonly known as 518-520 West 139th Street, Apt #34, New York, NY 10031
`
`(the “Premises”).
`
`5.
`
`Upon information and belief, and at all times relevant to this action, the Premises
`
`was/is rent stabilized and was/is subject to the NYC Emergency Housing Rent Law or the Rent
`
`Stabilization Law of 1969 as amended.
`
`6.
`
`In or around July, 22, 2013, the Premises was severely fire damaged and became
`
`uninhabitable. A true and correct copy of the Fire Report is attached as Ex. “A” to Ex “1”
`
`annexed hereto.
`
`7.
`
`In or around July 22, 2013 the DOB issued a Peremptory Vacate Order (“Vacate
`
`Order”), and pursuant to said Vacate Order, Plaintiff vacated the Premises. A true and correct
`
`copy of said Vacate Order is attached as Ex. “B” to Ex “1” annexed hereto.
`
`8.
`
`Upon information and belief, shortly thereafter, Plaintiff through counsel initiated
`
`a HP Action in the Civil Court of the City of New York County of New York bearing Index.:
`
`1599/2013 (the “HP Action”) seeking to, inter alia, restore Plaintiff back into possession of the
`
`Premises.
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`10 of 149
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`FILED: NEW YORK COUNTY CLERK 08/20/2017 01:19 PM
`NYSCEF DOC. NO. 5
`
`INDEX NO. 654620/2017
`
`RECEIVED NYSCEF: 08/20/2017
`
`9.
`
`Upon information and belief, said HP Action was initially filed against
`
`Respondents DHNY APT1II LLC
`
`(the “Prior Owner”), GEMSTONE PROPERTY
`
`ANAGEMENT LLC, MICHAEL ARYEH, DAVID STERN and BRIAN NEWMAN.
`
`10.
`
`Upon information and belief, in or around September, 2013, Defendant HARLEM
`
`EAST LLC purchased the subject Property via a Bargain and Sale Deed (the “Deed”). A true and
`
`correct copy of said Deed is attached as Ex. “C” to Ex “1” annexed hereto.
`
`11.
`
`Accordingly, upon information and belief, HARLEM EAST LLC, SHANNON
`
`DOHERTY and MICHAEL SWEICA were substituted in as Respondent-Owners and landlords
`
`of the Building pursuant to a stipulation signed on September 19, 2013, and accordingly are
`
`named herein as defendants.
`
`12.
`
`Upon information and belief, and at all times relevant to this action, JESSE
`
`ATIAS, ANGEL FABIAN and US REALTY CORP were/are listed as the head officer, officer,
`
`and managing agent respectively of the Subject Property and Premises and consented to being
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`added as Respondents to the HP Action and accordingly are named herein as defendants.. 1
`
`13.
`
`In or around January, 2014, Plaintiff and HP Respondents entered into a Consent
`
`Order (the “Consent Order”) a copy of which is annexed as Ex. “D” to Ex “1” annexed hereto, in
`
`which HP Respondents agreed to eliminate the fire damage, rehabilitate the building as stipulated
`
`in the Consent Order, and return petitioners and their occupants within the HP Action (including
`
`herein Plaintiff) to the subject Property / Premises by April 30, 2015.
`
`14.
`
`Pursuant to said Consent Order, and pertinent to the herein action, HP
`
`Respondents agreed that, inter alia:
`
`
`1 HARLEM EAST LLC, SHANNON DOHERTY and MICHAEL SWEICA, JESSE ATIAS, ANGEL FABIAN and
`US REALTY CORP shall be collectively known as (“HP Respondents”) herein.
`
`
`11 of 149
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`FILED: NEW YORK COUNTY CLERK 08/20/2017 01:19 PM
`NYSCEF DOC. NO. 5
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`INDEX NO. 654620/2017
`
`RECEIVED NYSCEF: 08/20/2017
`
`
`
`See Parag. 8 of Ex. “D” attached to Ex “1” annexed hereto.
`
`15.
`
`Upon information and belief, petitioners (including Plaintiff) filed an Order to
`
`Show Cause (OSC) for contempt on March 3, 2015 for HP Respondents’ failure to meet the
`
`benchmarks laid out in the Consent Order.
`
`16.
`
`Upon information and belief, petitioners (including Plaintiff) filed a second
`
`contempt motion on June 22, 2015 regarding HP Respondents’ failure to timely return petitioners
`
`(including Plaintiff) and their occupants to their apartments and Respondents’ failure to
`
`rehabilitate the Property / Premises as outlined in the Consent Order.
`
`17.
`
`Upon information and belief, HP Respondents attempted to circumvent the, inter
`
`alia, NYC Emergency Housing Rent Law, The Rent Stabilization Law of 1969, and Consent
`
`Order in that HP Respondents advertised2 the subject Premises and rented the subject Premises to
`
`a third party not entitled to possession of the Premises.
`
`18.
`
`Upon information and belief, petitioners (including Plaintiff) filed a third
`
`contempt motion on July 9, 2015 regarding HP Respondents failure to provide petitioners
`
`(including Plaintiff) and their occupants with keys to the Building and their apartments.
`
`19.
`
`On or about July, 14, 2015, HP Respondents were ordered (the “HP July 2015
`
`Order”) to comply with the Consent Order and to provide keys to all petitioners (including
`
`Plaintiff) on or before the close of business July 16, 2015. A true and correct copy of the HP July
`
`2015 Order is attached as Ex. “F” attached to Ex “1” annexed hereto.
`
`
`2 Attached hereto as Ex. “E” is a true and correct copy of said advertisement
`
`
`12 of 149
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`FILED: NEW YORK COUNTY CLERK 08/20/2017 01:19 PM
`NYSCEF DOC. NO. 5
`
`INDEX NO. 654620/2017
`
`RECEIVED NYSCEF: 08/20/2017
`
`20.
`
`Shortly thereafter, Plaintiff was placed back into possession of the subject
`
`Premises, however, said Premises was entirely reconfigured in contravention of the Consent
`
`Order.
`
`21.
`
`On or about December, 15, 2015, HP Respondents and Petitioners (including the
`
`herein Plaintiff) entered into a Stipulation of Settlement (the “HP Settlement Stip”) whereby said
`
`parties settled the HP Action, however, carving out the following exception:
`
`
`
`A true and correct copy of the HP Settlement Stip is attached as Ex. “G” to Ex “1” annexed
`hereto.
`
`
`22.
`
`Further, over the course of the last few years Plaintiff has had extensive warranty
`
`of habitability issues as well as extensive issues relating to Plaintiff’s quiet enjoyment rights of
`
`the Subject Premises and Plaintiff has lodged multiple complaints regarding such.
`
`23.
`
`In or around September of 2016, Plaintiff, through counsel, sent a demand letter
`
`to; inter alia¸ HARLEM EAST LLC demanding that said Premises be placed back into the
`
`configuration it was in prior to July, 2013. See Ex. “H” attached to Ex “1” annexed hereto.
`
`24.
`
`Thereafter, upon information and belief, on or about April 18, 2017, and in
`
`retaliatory fashion, Defendant Harlem East LLC, through its counsel filed a meritless summary
`
`holdover Petition (the “First Summary Proceeding”). A true and correct copy of the Notice of
`
`Petition and Petition for the First Summary Proceeding is attached as Ex. “I” to Ex “1” annexed
`
`hereto.
`
`25.
`
`The First Summary Proceeding was settled pursuant to a stipulation. See Ex. “2”
`
`13 of 149
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`FILED: NEW YORK COUNTY CLERK 08/20/2017 01:19 PM
`NYSCEF DOC. NO. 5
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`INDEX NO. 654620/2017
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`RECEIVED NYSCEF: 08/20/2017
`
`26.
`
`On or about July 26, 2017, and in retaliatory fashion, Defendant Harlem East
`
`LLC, through its counsel filed another meritless summary holdover Petition (the “Second
`
`Summary Proceeding”). A true and correct copy of the Notice of Petition and Petition for the
`
`Second Summary Proceeding is attached hereto as Ex. “3”
`
`27.
`
`During the entirety of Plaintiffs’ tenancy, and during all relevant times, the
`
`Premises has not been suitable for living and the Premises has not been free from conditions
`
`dangerous to health, life and/or safety.
`
`28.
`
`Accordingly, to preserve Plaintiff’s rights and to be compensated for her
`
`damages, Plaintiff filed the herein matter. A true and correct copy of the Summons and
`
`Complaint is attached hereto as Ex “1”
`
`LEGAL ARGUMENT
`
`I.
`
`PLAINTIFF MEETS THE REQUIREMENTS FOR THE ISSUANCE OF A
`PRELIMINARY INJUNCTION
`
`29.
`
`The decision to grant a motion for a preliminary injunction is committed to the
`
`discretion of the trial court. Doe v. Axelrod, 73 N.Y.2d 748, 750 (1988); Jiggets v. Perales, 202
`
`A.D.2d 341, 342 (1st Dep’t 1994).
`
`30.
`
`Preliminary relief is appropriate where: (1) the moving party is likely to succeed
`
`ultimately on the merits of its claim; (2) there exists the prospect of irreparable injury if the
`
`provisional relief is withheld; and (3) the balance of equities tips in the moving party’s favor.
`
`Nobu Next Door LLC v. Fine Arts Hous., Inc., 4 N.Y.3d 839, 840 (2005).
`
`31.
`
`Here, Defendants are attempting to unlawfully evict Plaintiff from the Subject
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`Premises which is Plaintiff’s home.
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`32.
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`Further, Plaintiff is most likely to succeed on the merits of her claim.
`
`14 of 149
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`FILED: NEW YORK COUNTY CLERK 08/20/2017 01:19 PM
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`RECEIVED NYSCEF: 08/20/2017
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`33.
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`If a preliminary injunction is withheld, and Defendants are allowed to proceed
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`within the summary proceeding, Plaintiff may unlawfully be evicted from her home which will
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`cause Plaintiff to suffer irreparable harm.
`
`34.
`
`As such, the balance of equities tips in the Plaintiff’s favor and this Court should
`
`grant Plaintiff’s request for preliminary relief.
`
`II.
`
`PURSUANT TO, INTER ALIA, CPLR 602(B), THIS COURT SHOULD
`REMOVE SUMMARY PROCEEDING ENTITLED HARLEM EAST LLC V.
`NIKIA NELSON, ET AL. PENDING IN THE CIVIL COURT, NEW YORK
`COUNTY, UNDER INDEX NO.: 069302/2017; AND CONSOLIDATE THAT
`PROCEEDING WITH THE HEREIN ACTION
`
`35.
`
`CPLR 602(B) states in pertinent part:
`
`Cases pending in different courts. Where an action is
`pending in the supreme court it may, upon motion,
`remove to itself an action pending in another court and
`consolidate it or have it tried together with that in the
`supreme court. Where an action is pending in the county
`court, it may, upon motion, remove to itself an action
`pending in a city, municipal, district or justice court in the
`county and consolidate it or have it tried together with that
`in the county court.
`
`36. More specifically, Courts have indeed consolidated summary proceedings and
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`actions pending before the Supreme Court.
`
`37.
`
`In Kally v. Mount Sinai Hospital, 44 A.D.3d 1010 (2007), the defendant moved
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`pursuant to CPLR 602 (b) to remove a summary proceeding entitled Matter of Kally v Mount
`
`Sinai Hospital pending in the Civil Court, Queens County to the Supreme Court, Queens County,
`
`and to consolidate that proceeding with Supreme Court Matter
`
`38.
`
`The Supreme Court denied the defendant's motion on the ground that the Civil
`
`Court is the preferred forum for resolving landlord-tenant issues, however the defendant
`
`15 of 149
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`FILED: NEW YORK COUNTY CLERK 08/20/2017 01:19 PM
`NYSCEF DOC. NO. 5
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`INDEX NO. 654620/2017
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`RECEIVED NYSCEF: 08/20/2017
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`appealed and the Appellate Division Second Judicial Department reversed holding in pertinent
`
`part:
`
`Where common questions of law or fact exist, a motion to
`consolidate should be granted absent a showing of
`prejudice to a substantial right by the party opposing the
`motion (see Nigro v Pickett, 39 A.D.3d 720, 722
`[2007]; Flaherty v RCP Assoc., 208 A.D.2d 496, 498
`[1994]; Stephens
`v Allstate
`Ins. Co., 185 A.D.2d
`338 [1992]; Zupich v Flushing Hosp. & Med. Ctr., 156
`A.D.2d 677 [1989]).
`
`Here, both the holdover proceeding and the action concern
`the same parties, and both involve common questions of
`law and fact regarding a lease executed by the defendant
`with respect to the premises that are the subject of the
`holdover proceeding. Resolution of the action in the
`Supreme Court will necessarily decide the issues in the
`holdover proceeding, and the two should be consolidated in
`the interest of judicial economy (see Flaherty v RCP
`Assoc., 208 AD2d at 498; DeCastro v Bhokari, 201 A.D.2d
`382, 383 [1994]; Morrell & Co. Wine Emporium v
`Richalan Realty Corp., 93 A.D.2d 736, 737 [1983]).
`Moreover, the equitable relief sought in the Supreme Court
`is unavailable in the summary proceeding (see NY City Civ
`Ct Act § 213; DeCastro v Bhokari, 201 AD2d at
`382; Morrell & Co. Wine Emporium v Richalan Realty
`Corp., 93 AD2d at 736; Lorch v Lorch, 7 A.D.2d
`641 [1958]).
`
`Accordingly, the Supreme Court improvidently exercised
`its discretion
`in denying
`the defendant's motion.
`
`In, Murphy v 317-319 Second Realty LLC, 2012 NY Slip Op 03515, the
`
`39.
`
`Appellate Division First Judicial Department held:
`
`[…] where, as here, complete relief cannot be afforded by
`Civil Court […] and common questions of law and fact
`exist, judicial economy is served by consolidation (Phoenix
`Garden Rest., Inc. v Chu, 202 AD2d 180 [1994]; Kally v
`Mount Sinai Hosp., 44 AD3d 1010 [2007]) […] Since a
`decision to consolidate is addressed to the sound discretion
`of the trial court, where, as here, there are common
`questions of law and fact, Supreme Court did not
`
`16 of 149
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`FILED: NEW YORK COUNTY CLERK 08/20/2017 01:19 PM
`NYSCEF DOC. NO. 5
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`INDEX NO. 654620/2017
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`RECEIVED NYSCEF: 08/20/2017
`
`(Best Price
`that discretion
`improvidently exercise
`Jewelers.Com, Inc. v Internet Data Stor. & and Sys., Inc.,
`51 AD3d 839 [2008]).
`
`Moreover, maintaining separate actions poses a risk of
`inconsistent verdicts concerning the status of the parties.
`Thus, Supreme Court did not abuse its discretion by
`removing
`the
`summary holdover proceeding
`and
`consolidating it with this action.
`
`In Hae Sheng Wang v Pao-Mei Wang, 2012 NY Slip Op 05141 [96 AD3d 1005],
`
`40.
`
`yet another similar circumstance, the plaintiffs appealed, as limited by their brief, from so much
`
`of an order of the Supreme Court, Queens County denying those branches of their motion which
`
`were pursuant to CPLR 602 (b) to stay a proceeding entitled Matter of Wang v Wang, pending in
`
`the Civil Court, Queens County, under index No. 62479/09, to remove it to the Supreme Court,
`
`Queens County, and to consolidate it with the Supreme Court Matter.
`
`41.
`
`Like in Kally and Murphy, supra, the Appellate Division Second Judicial
`
`Department held in Hae Sheng Wang that:
`
`The plaintiffs' cause of action alleging breach of contract
`involves issues of law and fact in common with those in the
`holdover proceeding pending in the Civil Court, and most
`of the parties are the same. "Where common questions of
`law or fact exist, a motion to consolidate [pursuant to
`CPLR 602 (b)] should be granted absent a showing of
`prejudice to a substantial right by the party opposing the
`motion" (Kally v Mount Sinai Hosp., 44 AD3d 1010, 1010
`[2007]). The defendant did not make a showing that
`removal and consolidation would prejudice a substantial
`right. Therefore, those branches of the plaintiffs' motion
`which were to stay the holdover proceeding, to remove it to
`the Supreme Court, Queens County, and to consolidate it
`with this action should have been granted (see CPLR 602
`[b]; Kally v Mount Sinai Hosp., 44 AD3d at 1010-1011).
`
`
`
`42.
`
`Additionally, when separate actions concerning the same subject matter have been
`
`instituted by the same parties in courts having concurrent jurisdiction, the court which first
`
`17 of 149
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`FILED: NEW YORK COUNTY CLERK 08/20/2017 01:19 PM
`NYSCEF DOC. NO. 5
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`INDEX NO. 654620/2017
`
`RECEIVED NYSCEF: 08/20/2017
`
`obtains jurisdiction with adequate power to administer full justice should continue to exercise
`
`jurisdiction. See Colson v Pelgram, 182 N.E. 19 (NY 1932) citing Schuehle v. Reiman, 86 N.Y.
`
`270; Garlock v. Vandevort,128 N.Y. 374.
`
`43.
`
`The reason for the rule is obvious. It is conducive to economy, and lack of friction
`
`between courts, saves labor and annoyance and leads to the orderly administration of justice.
`
`44.
`
`There should be one action only to settle the rights of the parties, when all rights
`
`can be properly determined
`
`in a single action.
`
`(Erie Ry.Co. v. Ramsey, 45 N.Y.
`
`637; Savage v. Allen, 54 N.Y. 458; Pond v. Harwood, 139 N.Y. 111.)
`
`45.
`
`Therefore, for the foregoing reasons, and to save the time of the court, the parties
`
`and witnesses, for the convenience of all concerned and because the relief requested can result in
`
`no prejudice, the Second Summary Proceeding referenced herein should be consolidated under
`
`the herein caption.
`
`CONCLUSION
`
`Accordingly, the within Motion must be granted in its entirety.
`
`WHEREFORE, it is respectfully requested that this Court issue an Order:
`
`a) For a Preliminary Injunction;
`
`b) Pursuant to CPLR 602(b), removing summary proceeding entitled Harlem East
`LLC v. Nikia Nelson, et al., under Index No.: 069302/2017.; and consolidating
`that proceeding with the herein action; and
`
`c) For such other and further relief as to this Court seems just and proper.
`
`To the best of my knowledge, information
`and belief,
`formed after an
`inquiry
`reasonable under the circumstances, the
`foregoing OSC/Motion, the papers upon
`which it is based, and the documents
`annexed thereto (if any), are not frivolous
`as defined in Part 130-1.1 of the Rules of
`the Chief Administrator of the Courts.
`
`18 of 149
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`FILED: NEW YORK COUNTY CLERK 08/20/2017 01:19 PM
`NYSCEF DOC. NO. 5
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`INDEX NO. 654620/2017
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`RECEIVED NYSCEF: 08/20/2017
`
`Dated: New York, New York
`August 20, 2017
`
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` ______________________________
` Ari Mor, Esq.
`(Rule 130-1.1-a)
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`19 of 149
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`FILED: NEW YORK COUNTY CLERK 08/20/2017 01:19 PM
`FILED: NEW YORK COUNTY CLERK 08m2017 01:19 P l
`NYSC 3F DOC. NO.
`
`5
`NYSCEF DOC. NO. 5
`
`
` V3
`fiX NO.
`654620/20;
`INDEX NO. 654620/2017
`
`08/20/20;
` VYSCEF:
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` *3
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`RECEIVED NYSCEF: 08/20/2017
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`EXHIBIT 1
`EXHIBIT 1
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`20 of 149
`20 of 149
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`

`

`FILED: NEW YORK COUNTY CLERK 08/20/2017 01:19 PM
`FILED: NEW YORK COUNTY CLERK 08m2017 01:19 P l
`NYSC 3F DOC. NO.
`
`5
`NYSCEF DOC. NO. 5
`
`
` V3
`fiX NO.
`654620/20;
`INDEX NO. 654620/2017
`
`08/20/20;
` VYSCEF:
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` *3
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`RECEIVED NYSCEF: 08/20/2017
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`EXHIBIT A
`EXHIBIT A
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`21 of 149
`21 of 149
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`

`

`FILED: NEW YORK COUNTY CLERK 08/20/2017 01:19 PM
`
`FILED' NEW YORK'
`UN
`CO
`TY CLERK 08 fl] 2017 01:19 P I
`NYSCI
`3F DOC. NO.
`5
`NYSCEF DOC. NO. 5
`
`INDEX NO. 654620/2017
`INDEX NO. 654620/2017
`
`
`
`
`
`R«C«IV«D yYSCEF: 08/20/2017
`RECEIVED NYSCEF: 08/20/2017
`
`
`
`W
`
`J;
`
`
`Artlendgpsgmsc-i.
`
`07/27/2013 11:09:19
`
`.
`
`‘
`
`Amended By
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`IIICIfi-emrepywe.d Edi-4.111141% .
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`. _
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`907088 - LENNON CHRISTOPHER J. Battalion Chief
`
`Reviewer
`
`Incident #
`
`Status
`
`1
`
`
`
`Closed
`
`" '
`
`07/22/2013 15:45:20
`
`111 - Building fire
`
`
`
`
`
`IncidcnlDate/Time
`
`
`
`
`Incident Type
`
`
`
`
`Blind?
`
`
`Address
`
`
`Apartment/Suite
`
`
`
`
`Floor
`
`
`
`
`Action Taken 1
`
`
`0
`Rescued (civilians)
`Evacuated (civilians)
`20
`429 - Multifamily dwelling,
`Properly Use
`
`
`
`11:31;
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`
`92 - Chief officer car
`
`B orou gh
`
`I
`
`3
`
`I
`
`1584
`520 W 139 ST 66 6 Manhattan
`66
`6
`1 - Manhattan
`1 1 — Extinguishment by fire service personnel
`
`U n it Type
`
`Action Takenl
`
`Dispatch Date/Time
`
`Enroule Date/Time
`
`Arrival Date/Time
`Cleared Date/Time
`Unit ReportBy
`
`Narrative
`
`81 - 1ncident command
`
`07/22/2013 15:46:08
`
`07/22/2013 15:48:56
`
`07/22/2013 15:51:06
`07/22/2013 21:25:03
`907088 - LENNON CHRISTOPHER J. Battalion Chief
`Incident Narrative
`,
`Incident number 07/22/2013-1—0548—0
`On Monday, July 22, 2013 at 15:45 hours the following units were
`dispatched to a report of a building fire. The incident location is street
`
`________________—————-
`
`E/
`10/16/2013 — Page 1
`
`10/16

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