Brown v. Lindsay

Brown v Lindsay

2024 NY Slip Op 34249(U)

November 26, 2024

Supreme Court, Kings County

Docket Number: Index No. 534320/2023

Judge: Wavny Toussaint

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.

INDEX NO. 534320/2023

[FILED: KINGS COUNTY CLERK 11/27/2024]

NYSCEF DOC. NO. 119 RECEIVED NYSCEF: 11/29/2024

At an IAS Term, Part 70 of the

Supreme Court of the State of New

York, held in and for the County of

Kings, at the Courthouse, at

360 Adams Stre~~' Brooklyn, New

York, on the ~b~ay of November

2024.

PRES ENT:

HON. WA VNY TOUSSAINT,

Justice.

-----------------------------------X

DWAIN BROWN and SANDY BIEN-AIME Index No. 534320/2023

BROWN,

Plaintiffs, DECISION AND ORDER

- against -

Motion Seq. #3

MARSHA LINDSAY, MARIA LINDSAY,

TITUS BROWN d/b/a T. BROWN

CONSTRUCTION CO., . ,,..,..

G)

Defendants. ~\ ~

-;".!. ""-:10

-----------------------------------X

The following e-filed papers read herein

NYSCEF Doc Nos.}" 1

--1

Notice of Motion/Order to Shower Cause/

Petition/Cross Motion and ~I

NI

Affidavits (Affirmations) - - - - - - - - 76-87 91 I

I

0 pp o sing Affidavits (Affirmations) _ _ __ 97-100 I

I

Reply Affidavits (Affirmations) _ _ _ _ __ 103-106

Other papers _ _ _ _ _ _ _ _ _ _ _ __ 107-111

Upon the foregoing papers, defendants Marsha Lindsay and Maria Lindsay

(collectively as "defendants") move by Order to Show Cause pursuant to CPLR §

2221(d) for leave to reargue and pursuant to CPLR § 222l(e) to renew the July 3,

2024 decision and order ("Order") of this court granting plaintiffs request for a

1 of 7

[* 1]

[FILED: KINGS COUNTY CLERK 11/27/2024] INDEX NO. 534320/2023

NYSCEF DOC. NO. 119 RECEIVED NYSCEF: 11/29/2024

preliminary injunction, and upon such re-argument and renewal, denying the

preliminary injunction. Plaintiffs oppose the motion.

BACKGROUND AND PROCEDURAL HISTORY

A full discussion of the facts giving rise to this action and the procedural

history herein to date, are more fully set forth in the Order. Additional relevant fa~ts

I

are set forth as follows: by Order to Show Cause filed on November 27, 2023,

I

plaintiffs moved, inter alia, to enjoin defendants from performing additional

I

construction work at defendants' property located at 346 McDonough Street,

Brooklyn, NY ("Site") and encroaching upon plaintiffs' property located at 344

McDonough Street, Brooklyn, NY ("Adjoining Property"). Defendants opposed,

arguing, inter alia, that damages are compensable, the remaining work does not

I

require access to plaintiffs' property, and plaintiffs failed to establish irreparable

harm. Plaintiffs contend the constructive work performed continues to creatJ a

hazardous condition, is a grave concern for plaintiffs' safety, and defendants

continue to perform construction work without any approved plans, permits or

. I

I

approvals. On July 3, 2024, the Court granted plaintiffs Order to Show Cause for a

preliminary injunction.

Defendants now move to reargue and renew, asserting the Court overlooked

or misapprehended matters of fact and law. Defendants reiterate, inter alia, there is

no basis to grant plaintiffs motion for a preliminary injunction. Particularly,

2

2 of 7

[* 2]

[FILED: KINGS COUNTY CLERK 11/27/2024] INDEX NO. 534320/2023

NY~CEF DciC. NO. 119 RECEIVED NYSCEF: 11/29/2024

defendants argue plaintiffs did not allege any future threat of harm or that plaintiff

would or could be injured by the construction work that is being enjoined. Moreovet

defendants argue the work being enjoined does not require access to plaintiffs'

property to complete the work at the Site, and the New York City Department of

Buildings ("DOB") found no hazardous conditions on site and has fully rescinded

I

their stop work orders. Defendants assert new and additional evidence demonstrate

I

the remaining work does not pose a risk of harm to plaintiffs' property, and their

plans have been approved in accordance with DOB, Landmarks Commission, and

all other applicable law. Defendants further assert that all excavation, foundationl

underpinning, and structural work has been completed in accordance with the DOB;

I

there is no remaining work on the shared party wall, nor is access to plaintiffs'

property required to complete the construction work at the Site; as the on!J

remaining work is the installation of finishing details, including inter alia, sheet~

rocking, plaster and paint and bathroom tiles.

In opposition, plaintiffs contend defendants failed to establish the Court

I

overlooked or misapprehended the facts or the law, as they merely repeat the same

1

arguments already heard before the court for the preliminary injunction. Plaintiffs!

I

rebut defendants' arguments highlighting the fact that defendants did not receive anyl

DOB approval, and that there are four active violations dated June 15, 2021. 1 1

1 NYSCED Doc. No. 98, pages 7, 9, 11, and 13.

3

3 of 7

[* 3]

[FILED: KINGS COUNTY CLERK 11/27/2024] INDEX NO. 534320/2023

NYS'CEF DOC. NO. 119 RECEIVED NYSCEF: 11/29/2024

Plaintiffs also contend, inter alia, their plans were already approved by the DOB and

I

I

Landmarks Commission, and therefore, defendants' plans cannot be approved, as it

is inconsistent with the scope of work for the same party-wall.

In reply, defendants again assert that plaintiffs failed to allege or offer any

I

evidence that they would or could be injured by the construction work that is

II

enjoined. Defendants also claim plaintiffs started structural and excavation work on

I

the party wall, but did not ask for nor did they receive defendants' permission to

extend metal bars onto defendants' property. In support, defendants submit a copy

of a stop work order from DOB dated October 10, 2024, which indicated there is no

access agreement with defendants for the proposed underpinning.

With the Court's permission, on October 22, 2024, plaintiffs submitted sur-

reply papers in response to defendants' reply papers, as defendants presented nlw

facts not previously stated. Plaintiffs explain that the defendants' actions

necessitated their own remediation efforts to the party wall, and as defendants refuse

to remediate the damage caused; and, but for plaintiffs' remedial efforts, the party

I

I

wall could have fully collapsed, thereby creating a significant risk to both the

I

plaintiffs' property and public safety. Plaintiffs contend that as a result of

defendants' illegal construction activities, unsafe soil erosion continued to ensue,

creating an immediately hazardous condition. Plaintiffs contend defendants continue

to violate the law (construction work without any approved plans) and the Court's

4

4 of 7

[* 4]

[FILED: KINGS COUNTY CLERK 11/27/2024] INDEX NO. 534320/2023

NYSCEF DOC. NO. 119 RECEIVED NYSCEF: 11/29/2024

prior orders. These facts that plaintiffs contend provides the basis for continuing to

keep in place the Court's preliminary injunction.

On October 28, 2024, defendant submitted sur-sur-reply papers, wherein they

repeat the same argument that plaintiffs did not allege a risk of harm. Defendants

also repeat their argument that plaintiffs did not provided a basis to enjoin defendants

I

'

from their remaining work, inter alia, painting of interior walls, replacing kitchen

cabinets, and laying bathroom tiles.

DISCUSSION

"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, but shall not include any matters of fact not

offered on the prior motion (CPLR 221 [d][2]). Motions for

reargument are addressed to the sound discretion of the

court which decided the prior motion and may be granted

upon a showing that the court overlooked or

misapprehended the facts or law or for some other reason

mistakenly arrived at its earlier decision. However, a

motion for leave to reargue 'is not designed to provide an

unsuccessful party with successive opportunities to

reargue issues previously decided, or to present arguments

different from those originally presented (Peretz v Xu, 205

AD3d 746, 747 [2d Dep't 2022][intemal quotation marks

and citations omitted]).

"A motion for leave to renew 'shall be based upon new facts not offered on the prfr

motion that would change the prior determination or shall demonstrate that there has

I

been a change in the law that would change the prior determination' (CPLR 2221

[e][2])" (Lepper v. Village ofBabylon, 230 AD3d 584, 586 [2d Dep't 2024]).

5

5 of 7

[* 5]

[FILED: KINGS COUNTY CLERK 11/27/2024] INDEX NO. 534320/2023

NYSCEF DOC. NO. 119 RECEIVED NYSCEF: 11/29/2024

Here, defendants merely repeated the same facts and legal theories previously

I

considered (Hallett v City of New York, 219 AD3d 809, 811 [2d Dep't 2023]). The

Court has fully considered the record before it and weighed the evidence presente~

by both parties, in accord with the standard of review on a motion for preliminary

injunction and finds no basis to reverse its prior decision (538 Morgan Ave.

I

'

Properties, LLC v 538 Morgan Realty, LLC, 186 AD3d 657, 658 [2d Dep't 2020]).

i

Moreover, defendants continue to fail to appreciate the hazardous condition

I

plaintiffs continue to face as the shared party wall remains unrepaired. Therefore,

the court hereby finds defendants failed to demonstrate the court overlooked or

misapprehended any relevant facts that were before it or misapplied any controlling

I

principle of law (Garcia v Cali CW Realty Assocs., L.P., 230 AD3d 1231, 1231 [2d

Dep't 2024]). I

As to renewal, the Court finds defendants' assertions constitute nothing morJ

than bare allegations, which in any event, are conclusory and without support, and

thus cannot serve as a basis to grant a renewal motion. Moreover, defendants raise

for the first time in their reply papers that plaintiffs have started structural an~

excavation work but failed to give the defendants notice about same and did not ask

I

for nor receive defendants' permission to extend metal bars onto defendants'II

property. However, this argument is based on subsequent facts different from those 1

1

originally presented. Therefore, "the defendant[s] failed to submit any new facts that

1

6

[* 6] 6 of 7

[FILED: KINGS COUNTY CLERK 11/27/2024] INDEX NO. 534320/2023

NYSCEF DOC. NO. 119 RECEIVED NYSCEF: 11/29/2024

would change the prior determination" (FZ Realty, LLC v. BH Shipping, LLC, 228

AD3d 735, 738 [2d Dep't 2024]).

The parties' remaining contentions, to the extent not expressly set forth hereih,

have been considered and are denied.

Accordingly, it is hereby

ORDERED that defendants Marsha Lindsay and Maria Lindsay's motion

seeking leave to reargue and renew (Seq. 3) is denied in its entirety.

This constitutes the decision and order of the court.

••I•,...,

C)

::n

r,)

··,125

:::-:..--:

-'f'.,.

0

N

J. S. C.

Hon. Wavny Toussaint

J.S.C.

7

7 of 7

[* 7]