Justice Thomas Whelan
Decided: August 7, 2015 via Short Form Order
In a decision handed down earlier this month (Schwartz v. Torrenzano) Justice Thomas Whelan denied a motion by the defendant-landlord dismissing claims for recovering rent previously paid and requesting sanctions against plaintiff-tenant. Plaintiff was also denied summary judgment, however, plaintiff's motion was granted in regards to sanctions and the matter set down for a hearing to determine if defendants actions were frivolous.
The plaintiff, pro se, but who is an admitted attorney in the State of New York brought an action against defendant-landlord to recover rent previously paid, a security deposit, late fees, and other charges due to the allegation that the landlord of a vacation home failed to obtain a rental permit pursuant to Town of Southampton Code Chapter 270 among other things. The Code states that the rental permit is a condition precedent to collecting any rent.
The defendant landlord argued that the Town Code did not provide for a private right of action to recover back-due rent citing Liu v. Asselbergs, 2013 WL 6916379 (Sup Ct, NY County, Dec 31, 2013, Madden J.),.
Justice Whelan determined that although the Town Code did not provide an express private right of action for the plaintiff, it did create an implied private right of action. Meaning, that the plaintiff's lawsuit to collect close to $150,000.00 in rent could proceed. Justice Whelan did point out that the pleadings of a complaint are to be construed liberally, and to survive a motion to dismiss the allegations in a complaint merely have to fit into some cognizable legal theory. The Court need not determine whether there is evidentiary proof to support such claims, or if the plaintiff suffered any actual damages.
The plaintiff's motion for summary judgment was denied, inter alia, because the defendant-landlord did not answer the complaint, but rather brought a motion to dismiss. The Court is powerless to grant a motion for summary judgment when the issue has not be joined.
Justice Whelan opined "...Moreover, plaintiff has demonstrated by documentary evidence that defendant falsely claimed to the Court that he was without legal representation at the time of the initial lease. The statements may have been suborned by counsel, whose own records would have shown defendant's affidavit to be false. Troubling is the affirmation of Adina T. Glass, an associate with the Abramson Law Group, who affirmed that she reviewed the accompanying reply affidavit of Richard Torrenzano, sworn to on February 24, 2015, and asserted that the statements "are true to the best of my knowledge," when the law firm had to have been aware of their falsity." In light of the foregoing, Justice Whelan granted the plaintiff's request for sanctions and ordered that defendant's counsel appear for a hearing pursuant to Part 130 of the Rules of the Chief Administrator to show cause why sanctions should not be imposed for their alleged frivolous conduct (see 22 NYCRR §130-1.1, et seq).
Deborah A. Schwartz, Esq., New York, NY
Attorney for Defendant: The Abramson Law Group, PLLC, New York City, NY