538155/20221 Recitation as per CPLR §§2219 and/or 3212 of Papers consider on Review of Motion: Papers NYSCEF Document #s Plaintiff’s Summons and Complaint (Instant matter) 1 Defendants NYC Dep’t of Housing Preservation and Development (“HPD”) and Mariana Glik (Mot. Seq. 2) 20-30 Plaintiff’s Mot. Seq. 3 31-33, 64-66, 89 Plaintiff’s Mot. Seq. 4 35-39, 64-66 Defendant NYC HPD’s Mot. Seq. 5 40-49 Defendant Nations Holding Corp.’s Mot. Seq. 6 50-63 Plaintiff’s Mot. Seq. 7 67-73, 84 Defendant Nations Holding Corp.’s Opposition (Mot. Seq. 4) 74-75 Defendant Rosenberg & Steinmetz, PC’s (“RSPC”) Opposition and Cross-Motion (Mot. Seq 4) 76 Defendant Rosenberg & Steinmetz, PC’s Mot. Seq. 8 77-78 Plaintiff’s Reply (Mot. Seq. 3) 79-83 Plaintiff’s Reply (Mot. Seq. 4) 95 Plaintiff’s Summons, Complaint and Related Papers (Index # 510074/2021) 1-12 Order Denying Plaintiff’s Motion (Index # 510074/2021, Velasquz, J., KSC) 51 Transfer of Minutes to the Appellate Division, Second Department (Index # 510074/2021) 58 Plaintiff’s Mot. Seq. 9 90-93 Plaintiff’s Mot. Seq. 10 96-99 DECISION AND ORDER Upon the foregoing cited papers and appearances on April 19, 2023 and August 23, 2023, pursuant to CPLR §§2219 and/or 3212, the Decision and Orders on Motion Sequences (“Mot. Seq.”) 2 through 8 is as follows: Defendants HPD and Marianna Glik’s motion to dismiss Plaintiff’s complaint (Mot. Seq. 2) is GRANTED. Defendants HPD’s motion to dismiss Plaintiff’s amended complaint (Mot. Seq. 5) is GRANTED. Defendant Nations Holding Corp.’s (“Nations Holding”) motion to dismiss Plaintiff’s complaint (Mot. Seq. 6) is GRANTED. Defendant Rosenberg & Steinmetz PC’s (“RSPC”) motion to dismiss Plaintiff’s complaint (Mot. Seq. 8) is GRANTED. Plaintiff’s motions to amend the complaint (Mot. Seq. 3 and 7) and for a Default Judgment against Defendant(s) Nations Holding and/or RSPC (Mot. Seq. 4) are DENIED. PROCEDURAL HISTORY Plaintiff’s ownership interest in the subject property (47 Vanderbilt Avenue, Brooklyn, NY) arose in or around 2015 when he was named co-administrator of decedent Max Antoine Arnoux’s estate, which included the subject property. See NYSCEF Doc #s 16-22 (Index # 500069/2021). Plaintiff claimed that he subsequently contracted to sell 47 Vanderbilt Avenue to Aquamarine Properties, whose rights to that contract were subsequently assigned to Defendant Nations Holding in or around March 2019. See id. and NYSCEF Doc # 58 (Escrow Agreement) (Index # 538155/2022). On or about January 16, 2018, Defendant HPD issued an order to repair and vacate the property due to uninhabitable conditions for tenants including lack of heat, water, and gas. See NYSCEF Doc. #s 27, 28, 48; see also NYSCEF Doc #s 16-22 (Index # 500069/2021). As a result of said repair and vacate order, HPD provided relocation services to the. See id. At the time that Defendant Nations Holding closed on its purchase of 47 Vanderbilt Avenue from the administrators on March 5, 2019, the property was under a clouded title caused by the vacate order and a potential/consequential HPD lien for relocation expenses. See NYSCEF Doc. # 55 at page 2. Pursuant to the purchase and sale agreement between the administrators and Defendant Nations Holding, they executed an escrow agreement on March 5, 2019 which placed $320,000 of the sale proceeds into escrow, with Defendant RSPC acting as escrow agent, that could be applied to buyouts of remaining tenants at the subject property and to satisfy any final HPD lien once relocation services were completed. See id. at pages 2-3; NYSCEF Doc. # 58; see also NYSCEF Doc. # 2, at page 11 (Index # 500069/2021) (“The plaintiffs [Ralph Arnoux and Nations Holding] and Marie Beecham entered into an agreement to hold $320,000 of the sale proceeds in escrow to, inter alia, discharge the relocation charges and corresponding future lien[s] from the Premises”). The tenant relocations began in 2018 and Defendant HPD incurred its last relocation expenses on January 7, 2021. See NYSCEF Doc. # 27. On or about January 4, 2022 and within the statutory period pursuant to Admin. Code §26-305, Defendant HPD filed a lien in the Kings County Clerk’s Office against the property in the amount of $389,195.46 for reimbursement of those relocation expenses. See, e.g., NYSCEF Doc. #s 27, 28, 48; see also NYSCEF Doc #s 16- 22 (Index # 500069/2021). By that time, $36,184.09 had been paid from the escrow funds to cover legal fees, tenant settlements and investigator costs to location tenants, and expenses incurred by Plaintiff Arnoux, leaving a balance of $283,815.91. See NYSCEF Doc. # 55 at pages 3-4; NYSCEF Doc. 54 at page 1. Plaintiff filed a series of lawsuits related to the HPD lien, including Ralph Arnoux v. New York City Department of Housing Preservation and Development, Index Number 2363/2018. See NYSCEF Doc. #s 23, 43. In that action, Plaintiff argued that Defendant HPD’s repair and vacate order should be null and void because ownership of 47 Vanderbilt Avenue was being litigated, that any liens against the property should be vacated because the property had been sold and the tenants would be unable to return, and that escrow funds should be held until the liens were removed. See id. By Order dated Sept. 24, 2019, the Kings County Supreme Court (Velasquez, J.) found that there were no liens filed by HPD on the subject property, Plaintiff had not yet suffered injury therefore Plaintiff’s motion was premature, he did not have standing to sue, and he failed to state a cause of action. See id. In or around March 2020, Plaintiff filed another action, Ralph Arnoux v. New York City Department of Housing Preservation and Development, Index Number 577/2020. See NYSCEF Doc. # 28. Defendants HPD and Glik claim that Plaintiff voluntarily discontinued that action on January 13, 2021. See id.2 By summons and complaint filed on or about April 29, 2021, Plaintiff commenced the action Ralph Arnoux v. New York City Department of Housing Preservation and Development, Index Number 510074/2021. By Order dated December 2, 2021, the Kings County Supreme Court (Velasquez, J.) denied Plaintiff’s motion, finding that as there were no liens filed by HPD on the property, Plaintiff had not yet suffered injury and thus Plaintiff’s motion was premature and accordingly Plaintiff did not have standing to sue and had failed to state a cause of action. On or around August 30, 2022, Plaintiff appealed the December 2, 2021 Dismissal Order to the Appellate Division (NYSCEF Doc #s 55, 58, Index # 510074/2021), where it is pending as Docket No. 2022- 00797.3 By summons and complaint filed on or about December 30, 2022 (see NYSCEF Document # 1), Plaintiff commenced the instant action against Defendants challenging a relocation lien placed by Defendant HPD upon 47 Vanderbilt Avenue, alleging negligence by Defendant HPD for filing the lien and seeking an Order for Defendant Nations Holding to release the escrow funds being held by Defendant RSPC to Plaintiff. On or about January 20, 2023, Defendants HPD and Glik filed a motion to dismiss the instant complaint pursuant to CPLR §§3211(a)(2) and 3211(a)(7) (Mot. Seq. 2). In their motion, Defendants argued that Plaintiff lacked standing to prosecute the action because Plaintiff was not the property owner at the time the lien was filed. See NYSCEF Doc. # 28. Defendants contend Plaintiff failed to establish that Defendant HPD owed him any special duty or that its filing of the lien was the proximate cause of Plaintiff’s alleged injury, and thus has failed to state a cause of action against Defendant HPD. See id. Defendants aver that dismissal is required because Plaintiff failed to file a Notice of Claim for the instant action, a condition precedent to actions seeking monetary damages against city municipalities. See id. Defendants further claimed that Glik, as an employee with HPD, acting in her official capacity, was not a proper party and must be dismissed from the action. See id. In the alternative, Defendants ask the Court they be allowed to submit an answer to Plaintiff’s complaint. See id. On or about February 9, 2023, Plaintiff filed a motion to amend the caption and/or pleadings (Mot. Seq. 3). In his Notice of Motion and on several of his filings related to this motion, Plaintiff appears to have deleted Defendant Mariana Glik from the complaint caption and papers therein. On or about February 23, 2023, Plaintiff filed a motion for a Default Judgment against Defendant(s) Nations Holding and/or RSPC and/or to amend the caption and/or pleadings of his complaint (Mot. Seq. 4). In his Notice of Motion and on the related filings to this motion, Plaintiff omitted Defendant Glik from the caption. On or about March 2, 2023, Defendant HPD filed a motion to dismiss Plaintiff’s Amended Complaint (Mot. Seq. 5). In its Notice of Motion and related filings, Defendant HPD argued Plaintiff lacked standing to prosecute the action and failed to state a cause of action against Defendant HPD and that dismissal was warranted because Plaintiff failed to file a Notice of Claim. On or about March 3, 2023, Defendant Nations Holding filed a motion to dismiss both the Complaint and the Amended Complaint (Mot. Seq. 6). In support of its motion, Defendant argued that res judicata and collateral estoppel barred any claim based on a prior determination by the Supreme Court, Nassau County, in Rosenberg & Steinmetz, P.C. v. Ralph Arnoux and Marie Beecham as Co-administrators of the Estate of Max Arnoux, and Nations Holding Corp., Index 614508/2021.4 On or about March 29, 2023, Defendant RSPC filed a motion opposing Plaintiff’s motion for a default judgment and a cross-motion to dismiss Plaintiff’s Complaint and the putative Amended Complaint and for an Order “prohibiting Plaintiff Ralph Arnoux to commence (sic) any further litigation or file any applications concerning distribution of certain escrow funds held by [Defendant] without express written permission from the Court.” (Mot. Seq. 8). DISCUSSION This Court is compelled to dismiss Plaintiff’s complaint against Defendants HPD and Glik on multiple grounds. First is Plaintiff’s failure to file a timely notice of claim. See General Municipal Law §50-e (notice of claim must be served within 90 days of the date of the occurrence); Cf., Matter of Galicia v. City of New York, 175 A.D.3d 681, 681 (2nd Dep’t 2019) (in determining whether to grant leave to serve a late notice of claim, the Court must consider all relevant circumstances including whether plaintiff demonstrated a reasonable excuse for its failure to do so, whether the municipal corporation acquired actual knowledge of the facts within the statutory period and whether the municipal corporation would be prejudiced in its ability to defend against the claim by this time). Matter of Katsiouras v. City of New York, 106 A.D.3d 916, 918 (2nd Dep’t 2013) (service of notice of claim made 20 days late was rejected as it was made without leave of Court). In this case, both Defendants note that since Plaintiff has not filed any notice of claim in the instant matter, this Court must dismiss Plaintiff’s instant complaint summarily as it has not granted Plaintiff leave to file a late notice of claim. In addition to not filing a notice of claim, this instant matter must be dismissed given Plaintiff’s lack of standing to challenge the relocation liens because he failed to establish that he was the owner of the subject property at the time it was sold to Defendant Nations Holding. See NYSCEF Doc. # 24 (NYC Dep’t of Finance Deed of Sale from Estate of Max Antoine Arnoux [Plaintiff as co-administrator] to Nations Holding Corp, filed April 1, 2019); NYSCEF Doc. # 25 (HPD lien filed January 4, 2022 in the Kings County clerk’s office, listing Defendant Nations Holding as the owner); see Matter of Eden Ballroom, LLC v. Maspeth Contr. Corp., 2016 N.Y. Misc. LEXIS 3692, 2016 NY Slip Op 31902[U] (Sup. Ct., New York County, Oct. 5, 2016) (“as petitioner is not named in the notice of lien, the lien in no way implicates its ownership interest, and petitioner therefore lacks standing to seek its cancellation”, citing Newman v. Valmar Elec. Co., 9 Misc 3d 450, 454 [Sup. Ct., New York County, 2005]). Plaintiff’s remaining claims are likewise without merit. Plaintiff cannot prevail on his negligence claim because he failed to establish that Defendant HPD owed him any duty or breached said duty and that any such breach was the actual and proximate cause of Plaintiff’s injury. See Pelaez v. Seide, 2 N.Y.3d 186 (2004); Flagstar Bank, FSB v. State of New York, 114 A.D.3d 138, 964 (2nd Dep’t 2013) (while county clerk’s error in docketing judgment allowed debtor to convey property free of lien thereby frustrating creditor’s ability to execute judgment, the county clerk neither owed creditor a special duty of care, nor was the statute designed to enforce judgments so as to make creditors whole). As for Defendant Glik, who acted only in her official capacity as an attorney with Defendant HPD, no special duty exists as to Plaintiff. The action must be dismissed as she is not a proper party. See Wilson v. New York City Bd. Of Educ., 167 A.D.3d 820 (2nd Dep’t 2018) (Defendant City did not owe school principal assaulted by student a special duty in action alleging that security officer failed to protect her); Katz v. Town of Clarkstown, 120 A.D.3d 632, 634 (2nd Dep’t 2014).5 As for Defendant Nations Holding’s motion to dismiss the Complaint and the Amended Complaint pursuant to CPLR §§3211(a)(1), (3), (5), (7), (8) and (10) (Mot. Seq. 6), Defendant’s reliance on the decision by the Nassau County Supreme Court decision under Index 614508/2021 is well-placed. Justice Pineda-Kirwan’s decision denied Plaintiffs motions before her. That decision consolidated motions by Mr. Arnoux and a cross-motion by Nations Holding in the course of resolving the interpleader action by escrow holder RSPC and held that Arnoux’s claims were “contradicted by the documents from HPD”, and whether in his personal or co-administrator capacity, Mr. Arnoux was not entitled to any portion of the funds being held in escrow. See NYSCEF Doc. # 54, at page 3 (Decision of Pineda-Kirwan, J.). That Court further found that Nations Holding was not only entitled to the escrow funds, but that it was entitled to recover attorney fees from the estate. See NYSCEF Doc. # 54, at pages 3-4. Finally, that Court also found that RSPC would be entitled to attorney fees from the escrow funds, upon which Nations Holding would then be reimbursed by the estate. See NYSCEF Doc. # 54, at pages 4-5. That Court also held that further proceedings on the case were to be held only to determine the “reasonable attorneys’ fees” due to Nations Holding and RSPC. See NYSCEF Doc. # 54, at page 5. In sum, the Nassau Supreme Court’s decision constituted a final judgment that explicitly foreclosed any and all of Plaintiff’s claims that he, whether as co-administrator or in his individual capacity, was entitled to any of the escrow monies, and thus his complaint against Defendants Nations Holding and RSPC must be dismissed on res judicata grounds. See Tracey v. Deutsche Bank Natl. Trust Co., 187 A.D.3d 815, 817 (2nd Dep’t 2020) (parties involved in prior foreclosure action or in privity with subsequent parties, were bound by decision in prior action despite new claim of forgery that could have been litigated in prior action [citing Matter of Hunter, 4 N.Y.3d 260, 269 2004 and quoting O'Brien v. City of Syracuse, 54 N.Y.2d 353, 357 1981 {"once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy"}); Matter of Ram v. Hershkowitz, 76 A.D.3d 1022, 1023 (2nd Dep't 2010) (petitioner may not continue to relitigate this issue by initiating new proceedings and actions seeking the same relief based upon the same factual allegations); see also CPLR §3215(a)(5); NYSCEF Doc. # 62. Therefore, dismissal is warranted against Defendant Nations Holding based on the principles of res judicata, thereby collaterally estopping Plaintiff from raising them in the instant action. See Pinnacle Consultants, Ltd. v. Leucadia National Corp., 94 N.Y.2d 426, 432 (2000) (collateral estoppel "prevents a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party"). Dismissal is also warranted as Plaintiff failed to establish proper service of process of the Complaint or Amended Complaint against Defendant Nations Holding. See NYSCEF Doc # 62 at pages 12--15. Defendant RSPC, like Defendant Nations Holding, opposed Plaintiff's motion for a default judgment (Mot. Seq. 4) and cross-moved for dismissal (Mot. Seq. 8). Since no affidavit of service upon Defendant RSPC was filed, dismissal of the Complaint and Amended Complaint on those grounds is also warranted. Additionally, like Defendant Nations Holding, Defendant RSPC is similarly situated in terms of its participation in prior court proceedings that foreclose Plaintiff's current claims on grounds of res judicata and collateral estoppel. Defendant RSPC raised additional valid grounds in support of its dismissal motion (see NYSCEF Doc # 78 at pages 4-8). Accordingly, both Defendants Nations Holding and RSPC's motions are granted, and the matter dismissed with prejudice. Consequently, Plaintiff's motions to amend its complaint (Mot. Seq. 3) and for a Default Judgment against Defendants (Mot. Seq. 7) are denied. In addition, subsequent to the April 19, 2023 court appearance wherein the filings made by the parties on Motion Sequences 2 through 8 were supplemented by oral argument, Plaintiff filed a motion on July 5, 2023 to amend the "complaints filed NYSEF (sic) Doc 71, 01, 32 City" as Motion Sequence 9. See NYSCEF Doc #s 90-92. As Plaintiff failed to appear before this Court for oral argument on the August 23, 2023 return date for this motion, this Court is denying Plaintiff's motion, which it would do in any event on grounds that Plaintiff's motion has been rendered moot by this Court's granting of dismissal of both the Complaint and the Amended Complaint on Defendants' Motions on Sequences 2, 5, 6 and 8, as stated infra. Plaintiff also filed a motion for a default judgment against Defendants Nations Holding and RSPC and attorney "Christopher" (presumably Nations Holding's attorney Christopher Rosado) (Sequence 10) on August 15, 2023 and calendared before this Court for September 20, 2023; in light of this Court Decision and Order herein, Plaintiff's motion is deemed advanced and is DENIED. In addition, this Court notes that Motion Sequence 1, which NYSCEF indicates is pending, was Plaintiff's motion seeking certain discovery (NYSCEF Doc. #s 3-12) is likewise DENIED by virtue of this Court's Decision and Order herein. Finally, litigants who repeatedly make similar motions numerous times can cause unwarranted costs to their adversaries while imposing a substantial burden on courts by expending its limited resources. See Freilich v. Jackson, 2018 N.Y.Misc. LEXIS 1854 at 18, 2018 NY Slip Op 30945(U) (Kings County Sup. Ct., 2018, Ash, J.) (citing Sassower v. Signorelli, 99 A.D.2d 358, 359 [2nd Dep't 1984]); see also Christopulos v. Christopulos, 208 A.D.3d 746 (2nd Dep’t 2022). Where litigants abuse the judicial process by continually filing motions reasserting claims and seeking relief already requested, equity may enjoin such vexatious litigation. See id. (citing Matter of Manwani v. Manwani, 286 A.D.2d 767, 768-769 [2nd Dep't 2001]; Sassower, 99 A.D.2d at 359). In light of the multiple motions filed in this Court in the instant matter, reasserting claims from prior motions and related litigation Plaintiff brought in the Kings County Supreme Court, the Appellate Division, Second Department, and Nassau County, all arising from the same underlying circumstances and where Plaintiff has not prevailed in his attempt to strike Defendant HPD’s lien or compelling the release of escrow funds to him, this Court is hereby enjoining Plaintiff from initiating further litigation under this or new index number in order to initiate any action against any of the named Defendants or non-parties seeking similar relief. (e.g., attorney Christopher Rosado Esq. or any other attorney appearing on behalf of any party listed in any action(s) relating to subject property, 47 Vanderbilt Avenue in Kings County). Plaintiff is enjoined from initiating further litigation as indicated above without prior written permission from this Court and the Clerk of Court is directed to not accept any filings from Plaintiff without said express permission from an assigned judge of this Court. See, e.g., Manwani v. Manwani, 286 A.D.2d at 768-769 (enjoining further litigation without prior permission of the Supervising Judge of Family Court); see also Dimery v. Ulster Sav. Bank, 82 A.D.3d 1034, 1035 (2nd Dep’t 2011) (enjoining plaintiff from bringing any further motions regarding the subject matter of the instant action without its permission); Matter of Ram v. Hershkowitz, 76 A.D.3d at 1023 (where petitioner continued to relitigate issue by initiating new proceedings and actions seeking the same relief based upon the same factual allegations, respondent was entitled to injunctive relief. A copy of this Decision and Order with Notice Of Entry shall be served upon all parties to the consolidated action by Defendants within (30) days of its entry. This constitutes the Decision and Order of this Court. Dated: August 23, 2023
