| Spataro v Abusable |
| 2010 NY Slip Op 50314(U) [26 Misc 3d 1229(A)] |
| Decided on February 26, 2010 |
| Civil Court Of The City Of New York, Kings County |
| Marton, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Barbara Spataro,
Petitioner
against Majdi Abusable et al., Respondents. |
This holdover proceeding was first returnable on January 28, 2010 at which time it was adjourned to February 26, 2010 for trial. By notice of motion dated February 4, 2010 and made returnable on February 16, 2010 petitioner moved for an order requiring respondent to pay $7,000.00 for rent and use and occupancy, calculated at the rate of $1,400.00 per month for the months of October, 2009 through February, 2010.
The motion is denied. The moving papers are meritless because they are supported only by the affirmation of counsel, and not by the affidavit of a person with knowledge of either the alleged oral agreement between the parties, or of the rental history of the premises, or of the rental value of the premises. Service of the moving papers was legally insufficient as well, i.e., made by mail on February 5, 2010 and therefore less than the 13 days in advance of the motion's return date as required by CPLR 2103(b)(2), 2214(b). Last, per the command of CPLR 406, the motion should have been made returnable on February 26, 2010 and not 10 days earlier.
The motion is not simply meritless. It is frivolous, for it is completely without merit in law
or fact and cannot be supported by a reasonable argument for an extension, modification or
reversal of existing law. On its face RPAPL § 745(2)(a) is inapplicable because it obtains
only upon a second request for an adjournment or an adjournment in excess of 30 days; as well,
it provides only for prospective pendente lite relief. Counsel is a veteran landlord-tenant litigator.
[*2]The motion could serve primarily only to make respondent, a
pro se litigant, waste a day coming to court. Accordingly, and pursuant to Part 130 of the Rules
of the Chief Administrator of the Courts, the court imposes a sanction of $500.00 on petitioner's
counsel, and he shall pay $250.00 of this sum by March 12, 2010 to the Lawyer's Fund for Client
Protection,119 Washington Avenue, Albany, NY 12210, to which the court will mail a copy of
this decision and order, and the remaining $250.00, also by March 12, 2010, to respondent.
Dated: February 26, 2010
Brooklyn, NY______________________
GARY F. MARTON