This is an action for damages arising from defendants' alleged illegal eviction ( lockout") of the individual plaintiff, Giselle Allard ( Allard"). Allard is also the president of the corporate plaintiff ( corporation"). A prior motion by the Hart defendants to dismiss Allard's amended complaint was denied for the reasons stated in the court's decision dated April 16, 2008. The Hart defendants have answered the amended complaint (hereinafter complaint") and Allard has filed the note of issue certifying that discovery is complete and the case is ready for trial.

The court has before it a motion by the Estate of Andrietta Hart, Diana Hart, as Executrix ( Hart" at times Diana") for summary judgment dismissing the complaint. Alternatively, Hart seeks discovery sanctions under CPLR § 3126 for plaintiff's failure to comply with her discovery demands, or that the Note of Issue be stricken and plaintiff ordered to comply with her discovery demands.

Allard has cross moved for summary judgment and the imposition of Part 130 sanctions. After these motions were argued and submitted, Allard brought a motion to amend her second cause of action to include treble (statutory) damages available under RPAPL § 853.

Since the motions for summary judgment are timely, they will be decided on the merits. CPLR § 3212; Brill v. City of New York, 2 NY3d 648 (2004). Se the issues are related, the motion to amend will also be decided in this decision.

The court's decision is as follows:

[*2]Arguments

Allard claims that the owner of the building located at 140 West 119th Street, New York, New York ( premises") gave her a triple net lease and that she was rightfully operating a boarding house at the premises when the owner's daughter (Hart) had her illegally evicted. Based upon these allegations, Allard seeks treble damages with respect to her alleged illegal eviction (1st cause of action). She has also brought a breach of contract cause of action in which she seeks compensatory damages (2nd cause of action). She also seeks punitive damages (3rd cause of action) and to recover her attorneys' fees from the defendant (4th cause of action). Allard's motion seeks to amend her breach of contract (2nd cause of action) so as to include treble damages and also to increase the amount of damages sought in paragraph 18 of her complaint to at a minimum of $600,000 . . ."

The operative document that Allard contends is her lease is dated August 1, 2002 ( lease"). The lease bears the signature of Andrietta Hart," the former landlord of the premises who is now deceased ( Mrs. Hart" or mother"). The lease permits Allard to run a rooming house ( SRO") at the premises. It is for the (8) year period commencing August 1, 2002 and ending July 31, 2010; the stated rent is $1,200.00 a month.

Mrs. Hart died October 1, 2006. Diana Hart was issued Preliminary Letters Testamentary on January 12, 2007. According to Allard, immediately after her mother died, Hart took steps to try to evict Allard from the premises. First, she demanded that Allard move out, then she called the police and notified them that Allard was a trespasser/ squatter/ illegal occupant who had not right to occupy the premises. When the police came and ordered that Allard leave, she did so and surrendered her keys to 140 West 119th Street.

Allard contends and testified at her examination before trial ( EBT") that she is the owner of 134 West 119th Street, New York, New York, the townhouse next door to Mrs. Hart's building. Allard testified at her EBT that she managed the premises for Mrs. Hart for a number of years. During that time, she helped Mrs. Hart pay for some badly needed repairs to the building and some bills, including taxes. The repairs Allard claims she paid for are to the water main and possibly the roof. Allard claim she briefly lived at the premises while her own building was being renovated. Allard has produced Con Ed bills and other bills she claims she paid, but she does not have proof of payment. Allard testified she owns several buildings in Harlem and uses only one bank account to pay for all their expenses. The Con Ed bills indicate that they are for Service to: Gisele Allard at 140 W. 119th Street Rms." They are addressed to Gisele Allard, 134 W. 119th Street, New York, NY 10026-1306." According to Allard, Mrs. Hart, to offset her debt to Allard, let plaintiff rent out some rooms at the premises and keep the money she earned from doing so. Eventually she and Mrs. Hart formalized this arrangement when Mrs. Hart gave Allard the alleged lease. Allard cannot recall any details of the lease, however. She remembers Mrs. Hart giving her the lease, but not whether she signed it or what she did with it. Allard has produced two pages which she claims are evidence of a lease for the premises. These pages are photocopies of a printed Blumberg" lease. One page (the first page) contains lease terms. It identifies the landlord as Andrietta Hart, as executrix of the Estate of _______ Robinson. The other page, ostensibly the last page of the putative lease, is signed by Andrietta Hart."

Hart argues there is no lease between Allard and the deceased landlord (her mother). Hart challenges the authenticity of the two page document that Allard relies upon as being her lease [*3]for the premises. Hart further claims that Allard was a predator who preyed on a frail and elderly Mrs. Hart, not a friendly neighbor who had Mrs. Hart's best interests in mind. According to Hart, Allard obtained the keys to Mrs. Hart's building and then began systematically renting out rooms at a profit without Mrs. Hart's knowledge or consent.

Hart argues that Allard cannot prove two material elements of her case against her based upon an illegal lockout/eviction. Hart contends that Allard has testified that she cannot recall any of the details about her lease with Mrs. Hart and that she has not been able to locate a copy of the original signed lease. Further, Hart argues that although Allard later notified her she had found" the lease, she never turned it over. This is also the basis for Hart's motion for preclusion or to strike the note of issue. Thus, according to Hart, Allard has no proof of (and cannot prove) an enforceable lease that would confer tenancy rights upon Allard, and therefore Allard was an illegal occupant at 140 West 119th Street who was not in peaceful possession of the premises when she was asked to leave by the police. Allard contends further that Hart was not entitled to legal process and therefore, she was not illegally evicted.

Hart contends that even if Allard can prove liability, Allard cannot prove any damages because Allard has no proof that she paid any of the bills, expenses or repairs she claims to have paid.

Alternatively, Hart contends that discovery sanctions under CPLR § 3126 are justified because Allard has never produced the original lease, even though she notified Hart that she believed she might have located it. According to Hart, Allard has made so many corrections" to her EBT testimony that she has substantively changed her testimony and therefore, the errata sheet should be stricken.

Allard's cross motion is supported by her attorney's affidavit ( Attorney Dalnoky"). Attorney Dalnoky states that his client has not provided her affidavit because there has been a breakdown in their communications, but that a good deal of the [summary judgment] motion is based upon [his] personal knowledge . . ." He also relies upon Hart's own motion papers and legal arguments, which he claims strongly support his client's claim of an illegal eviction or breach of lease. He also refers to statement made by Allard at her EBT, the minutes of which are a part of this record. While acknowledging there are some issues of fact, Dalnoky nonetheless argues that Allard is entitled to summary judgment because she was in peaceful, lawful possession of the premises and Hart illegally evicted her. According to plaintiff, even if she did not have a lease, she was not a trespasser, but a licensee who came into possession of the keys to the building through Mrs. Hart, and therefore she (Allard) should not have been evicted without legal process.

Allard contends that although Hart retained a handwriting expert to prove in Surrogate's Court that Andrietta Hart's signature on a will proferred by Mr. Meacham was authentic, Hart did not disclose this important information to this court. Thus, according to Allard, Hart's failure to disclose this information entitles Allard to an adverse inference or presumption that the signature on the alleged lease is, in fact, that of Mrs. Hart. Alternatively, Allard contends that the original lease is probably with Mr. Meacham who has since been disbarred which is why Allard herself cannot produce it.

In support of her motion to amend the complaint, Allard argues that since the lease was signed by Mrs. Hart, and she was the party creating the interest in the real property, the lease is [*4]binding on her estate, and therefore, Allard has proved she is a tenant entitled to legal process in order to be evicted. Allard contends that under the RPAPL (section 853) she is entitled to treble damages, and therefore, she should be permitted to served an amended complaint to increase the amount of damages she is seeking.

The court will first consider whether either side is entitled to summary judgment before deciding whether the proposed amendment to the complaint should be permitted since it goes to the issue of damages, not liability.

Law Applicable to Motions for Summary Judgment

"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. " Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985). Once met, this burden shifts to the opposing party who must then demonstrate the existence of a triable issue of fact. Alvarez v. Prospect Hosp ., 68 NY2d 320, 324 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980). A party may not defeat a motion for summary judgment with bare allegations of unsubstantiated facts. Zuckerman v. City of New York, supra at 563-64.

When an issue of law is raised in connection with a motion for summary judgment, the court may and should resolve it without the need for a testimonial hearing. See: Hindes v. Weisz, 303 AD2d 459 (2nd Dept 2003).

Discussion

The fact that Allard has not provided her sworn affidavit in opposition to Hart's motion for summary judgment or in support of her own cross motion does not require the grant or denial of either of these motions. CPLR § 3212 requires that a motion for summary judgment be supported by an affidavit, copy of the pleadings and by other available proof, such as depositions. Allard has verified her amended complaint and she was deposed. Thus, the court has the sworn statements of Allard to consider, not just her attorney's statements, some of which are based on personal knowledge, some of which are not.

Allard's request, that the court draw an adverse presumption" in her favor that the signature on the alleged lease is, in fact, that of Mrs. Hart, is denied. This argument by her conflates two separate legal theories, neither of which apply.

A party seeking an adverse inference must make a prima facie showing that the document in question actually exists, that it is under the opposing party's control, and that there is no reasonable explanation for failing to produce it. Wilkie v. New York City Health and Hospitals Corp., 274 AD2d 474 (2nd Dept 2000). Where a party fails to provide discovery, the court can impose discovery sanctions which may include issue resolution. CPLR § 3126 [3].

Plaintiff's argument is that there is an expert's report or affidavit that defendant did not disclose. The expert however, was in the Surrogate's Court action and had to do with the probating of Mrs. Hart's will. Plaintiff did not serve Hart with discovery demands for these documents. Moreover the signature considered during probate was on a will. There is simply no evidence that Hart has the original lease but has refused to turn it over to the plaintiff, nor is there any evidence that Hart had the lease at one time, but destroyed it. The fact that a document or handwriting expert authenticated Mrs. Hart's signature on one document (the will) is not probative of whether Mrs. Hart's signature on the alleged lease is authentic, as plaintiff claims. [*5]There is, therefore, no reason for the court to resolve in plaintiff's favor the issue of whether Mrs. Hart's signature on the lease is authentic.

The heart of the parties' dispute is whether there is a lease between the deceased and Allard that is binding on the executrix (Hart). To establish a lease it must be executed and delivered by the landlord to the tenant because the landlord is the party who has the interest in the real property that is being granted, assigned, etc. General Obligations Law § 5-703. The best evidence rule requires that the party seeking to prove the contents of a writing must introduce the original writing or satisfactorily explain its absence. In situations where the original is lost or destroyed, the proponent may be allowed to show secondary evidence as to the contents of the lost or destroyed original. Schozer v. William Penn Life Ins. Co. of New York, 84 NY2d 639 (1994). Such secondary evidence may be admitted upon threshold factual findings by the trial court that the proponent has sufficiently explained the unavailability of primary evidence (the original document) and has not procured its loss or destruction in bad faith. Schozer v. William Penn Life Ins. Co. of New York, 84 NY2d at 644.

Allard has only produced two pages of a document she claims is the lease. The first page has the terms of the lease and it identifies the landlord as Andrietta Hart, as executrix of the Estate of __________Robinson." The last page has printed language on it and the signature of Andrietta Hart," without qualification. Nothing, however, identifies the two pages as being part of the same, or a single, document. The signature page is undated. Though notarized, the expiration of the notary's commission is partially obliterated so that it reads Commission Expires 6/30___."

At her EBT Allard testified that she could not remember whether she had a lease with Mrs. Hart: Q: Did you have a written lease with Ms. Hart? You testified earlier that you weren't sure. A: I am still not sure." Later, however, she submitted an errata sheet which completely changed her testimony: Q: Did you have a written lease with Ms. Hart? You testified earlier that you weren't sure. A: Yes, as you can see, it is signed by Ms. Hart but not myself."

Plaintiff's errata sheets are not only untimely, but she has substantially changed her testimony without any explanation for the changes. CPLR § 3116; Garcia v. Stickel, 37 AD3d 368 (1st Dept. 2007). Allard's inability to establish that there is an original lease which is lost or has been destroyed is fatal to her claims. Although she urges the court to consider secondary evidence of the lease, she has not made reasonable attempts to locate the original. According to Allard, Mr. Meacham, the attorney who provided her with legal services several years ago, may have the lease or know where it is. Her present attorney (Attorney Dalnoky) states without having any personal knowledge that he thinks Mr. Meacham (now in his 90's) may have had an attorney's lien on Allard's files. Attorney Dalnoky surmises that this is because the alleged lease is a printed Blumberg form which has a standard fees clause. All of this is conjecture; none of it defeats defendant's motion for summary judgment dismissing the complaint. A motion for summary judgment cannot be defeated by conjecture and shadowy semblances of issues. Central Nat. Bank of New York v. Chalet Food Corp., 145 AD2d 350 (1st Dept. 1988).

Allard has also failed to prove that she was forcibly ejected from the premises. Although she may have physically occupied the building, she has not proved that she had any right to do so. RPAPL § 853 provides that actual physical occupancy alone will not in and of itself make out a cause [of action for illegal eviction] . . ." Thus, when the police came and asked Allard to [*6]leave, they were following the Hart's instructions and Hart a right under the common law to reclaim the premises. Allard left without the use of any force, and she surrendered the keys.

Defendant Hart has proved that she is entitled to summary judgment dismissing the complaint because Allard has not come forward with the original lease which would prove she is a tenant, and not merely a squatter or trespasser. Allard has not raised any material issues of fact for trial to defeat defendant's motion. Therefore, Hart's motion is granted and the amended complaint is dismissed. Allard's cross motion for summary judgment and sanctions is denied.

Having dismissed the complaint, Allard's separate motion to serve an amended complaint is rendered moot. It is denied for that reason.

Conclusion

It is hereby:

Ordered that defendant's motion for summary judgment is GRANTED and the amended complaint is dismissed for the reasons stated in the foregoing decision; and it is further

Ordered that plaintiff's cross motion for summary judgment and sanction is DENIED in all respects;

Ordered that plaintiff's separate motion to serve an amended complaint is here denied as moot; and it is further

Ordered that the Clerk shall enter judgment in favor of defendant, The Estate of Andrietta Hart, Diana Hart, as Executrix, with costs and disbursement, against plaintiff; and it is further

Ordered that any relief requested that has not been addressed has nonetheless been considered and is hereby expressly denied; and it is further

Ordered that this constitutes the decision and order of the court.

Dated:New York, New York

February 10, 2009So Ordered:

_______________________

Hon. Judith J. Gische, J.S.C.