The opinion
Schmucker v Angrist
2025 NY Slip Op 32466(U)
July 11, 2025
Supreme Court, New York County
Docket Number: Index No. 161456/2024
Judge: Paul A. Goetz
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. 161456/2024
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 07/11/2025
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. PAUL A. GOETZ PART 47
Justice
---------------------------------------------------------------------------------X INDEX NO. 161456/2024
WHITNEY SCHMUCKER,
MOTION DATE 04/30/2025
Plaintiff,
MOTION SEQ. NO. 002
-v-
GREG ANGRIST, SARA ANGRIST, CHARLES ASCH,
LAURA BRIGHTSEN, VIVIAN OLIVER, JASON ROBERTS, DECISION + ORDER ON
NORMAN STEINER MOTION
Defendants.
---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 002) 14, 15, 16, 17, 18,
19, 23, 24, 27, 28, 29, 30, 31, 32, 33, 34, 35, 45, 46, 48, 49
were read on this motion to/for DISMISS .
Upon the foregoing documents, it is
ORDERED that plaintiff’s cross-motion to amend the complaint is granted and 136 East
56th Street Owners, Inc is substituted in place of the Individual Officers sued in their capacity as
officers of 136 East 56th Street Owners, Inc; and it is further
ORDERED that plaintiff’s cross-motion to amend the complaint to add causes of action for
breach of the proprietary lease and a breach of the warranty of habitability is granted because
“leave to amend a pleading pursuant to CPLR 3025(b) should be freely granted unless the proposed
amendment is palpably insufficient or patently devoid of merit” and here plaintiff has adequately
alleged that defendant breached the Proprietary Lease by allegedly failing to repair the leak in
plaintiff’s apartment (Seidman v Indus. Recycling Properties, Inc., 83 AD3d 1040, 1040-41 [2d
Dept 2011]); and it is further
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Motion No. 002
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INDEX NO. 161456/2024
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 07/11/2025
ORDERED that the amended complaint, in the form annexed to the motion papers, shall
be deemed served upon service of a copy of this order with notice of entry upon all parties who
have appeared in the action; and it is further
ORDERED that a supplemental summons and amended complaint, in the form annexed to
the motion papers, shall be served, in accordance with the Civil Practice Law and Rules, upon the
additional parties in this action within 30 days after service of a copy of this order with notice of
entry; and it is further
ORDERED that the action shall bear the following caption:
WHITNEY SCHMUCKER,
Plaintiff,
-v-
136 East 56th Street Owners, Inc
Defendant
And it is further
ORDERED that counsel for the moving party shall serve a copy of this order with notice
of entry upon the County Clerk and the Clerk of the General Clerk’s Office, who are directed to
mark the court’s records to reflect the parties being added pursuant hereto; and it is further
ORDERED that such service upon the County Clerk and the Clerk of the General Clerk’s
Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse
and County Clerk Procedures for Electronically Filed Cases (accessible at the “E-Filing” page on
the court’s website]; and it is further
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Motion No. 002
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INDEX NO. 161456/2024
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 07/11/2025
ORDERED that the portion of defendant’s motion to dismiss the complaint as asserted
against the individual defendants is denied as moot; and it is further
ORDERED that the portion of defendants’ motion seeking to dismiss the first cause of
action seeking an injunction directing defendants to make necessary repairs to remedy the alleged
leaks in her apartment is denied as plaintiff has properly plead this cause of action (see McMahon
v Cobblestone Lofts Condominium, 161 AD3d 536 [1st Dept 2018]); and it is further
ORDERED that the portion of defendants’ motion seeking to dismiss the second cause of
action seeking a declaratory judgment is granted because a “cause of action for declaratory
judgment is unnecessary and inappropriate when the plaintiff has an adequate, alternative remedy
in another form of action, such as breach of contract or injunctive relief (Ithilien Realty Corp. v
180 Ludlow Dev. LLC, 140 AD3d 621, 622 [1st Dept 2016]); and it is further
ORDERED that the portion of the defendants’ motion seeking to dismiss the third cause
of action for constructive eviction is denied because plaintiff has properly alleged “wrongful acts
by the [board] that substantially and materially deprive the tenant of the beneficial use and
enjoyment of the premises” (Pac. Coast Silks, LLC v 247 Realty, LLC, 76 AD3d 167, 172 [1st
Dept 2010]), in that she plead that an unrepaired persistent leak caused mold damage necessitating
her moving out of her unit; and it is further
ORDERED that the portion of defendants’ motion seeking to dismiss the fourth and fifth
causes of action for property damage and attorney’s fees is denied because attorneys’ fees may be
recoverable under RPL § 234 and the proprietary lease; and it is further
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Motion No. 002
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INDEX NO. 161456/2024
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 07/11/2025
ORDERED that the parties are directed to attend a preliminary discovery conference on
October 9, 2025 at 9:30 AM.
7/11/2025
DATE PAUL A. GOETZ, J.S.C.
CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
GRANTED DENIED X GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
161456/2024 SCHMUCKER, WHITNEY vs. ANGRIST, GREG ET AL Page 4 of 4
Motion No. 002
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