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FILED: NEW YORK CIVIL COURT - L&T 03/28/2023 11:04 AMNO. LT-064229-18/NY [HO]
NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 03/28/2023

CIVIL COURT OF THE CITY OF NEW YORK

COUNTY OF NEW YORK: HOUSING PART
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SOUFER FAMILY LLC, L&T 64229-18/NY

Petitioner-Landlord,
AFFIRMATION IN
-against- FURTHER SUPPORT OF
PETITIONER’S MOTION
BARBARA SPRAGUE, (MS #5)

Respondent-Tenant,

ANTHONY GRONOWICZ, “JOHN DOE” and

“JANE DOE,”

Respondent(s)-Undertenant(s).
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STEPHANE JEREMY AVOUAC, an attorney duly admitted to practice law before the

Courts of the State of New York affirms, under penalty of perjury, the truth of the following

pursuant to CPLR 2106, except as to those matters stated upon information and belief, and sets

forth the following propositions of law:

1. I am associated with the law firm of BUTNICK & LEVENSON LLP, which

represents Petitioner SOUFER FAMILY LLC in the instant proceeding. As such, I am fully

familiar with the facts and circumstances set forth herein, except as to those stated upon

information and belief.

2. I respectfully submit this reply affirmation in further support of Petitioner’s pending

motion (MS #5) seeking an order: (a) deeming the May 5, 2019 Decision duly entered as of May

5, 2019, and deeming the corresponding Notice of Entry proper nunc pro tunc pursuant to CPLR

2001; (b) deeming the September 19, 2019 order duly entered as of September 19, 2019; and (c)

awarding Petitioner such other, further relief as this Court may deem just and proper.

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FACTS & PROCEDURAL HISTORY

3. For a complete statements of the relevant facts and procedural history pertaining to

the case at hand, the Court is respectfully referred to the Affirmation in Support of Noah E.

Levenson, Esq., dated December 19, 2022 (hereinafter the “Levenson Aff.”), NYSCEF Doc. No.

36.

ARGUMENT

4. In opposition to Petitioner’s pending motion to deem the May 5, 2019 Decision

entered at the time the Decision was issued by the Court, Respondent proffers three flawed

arguments that will be easily disposed of by the Court. See Affirmation in Opposition of David

Hershey-Webb, Esq., dated March 6, 2023 (hereinafter the “Hershey-Webb Aff.”), NYSCEF Doc.

No. 64.

I- Respondent Misrepresents the Plain Language of CPLR 2001

5. A cursory review of CPLR 2001 will reveal that Respondent misrepresents its plain

language. Indeed, CPLR 2001 states, in relevant part, that: “At any stage of an action . . . the court

may permit a mistake, omission, defect or irregularity . . . to be corrected, upon such terms as may

be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or

irregularity shall be disregarded . . . .” CPLR 2001.

6. The statute therefore states that a mistake may be disregarded if no right of a party

is prejudiced. Nowhere does it state that a court may permit a mistake to be corrected if there is no

prejudice.

7. Petitioner respectfully submits that the Court should correct the Clerk of Court’s

omission in entering the May 5, 2019 Order by deeming same entered on the date it was signed by

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the presiding judge. Namely, Petitioner argues such a result would be just, given the prejudice that

would result should this omission not be corrected.

8. Respondent’s argument that it would be substantially prejudiced were the Court

issue an order deeming the notice of entry filed on the date of the Decision is disingenuous at best.

In essence, Respondent is arguing that it would be severely prejudiced if it were not permitted to

take advantage of the Court’s error.

9. Indeed, Petitioner “litigated a 3-year traverse claim believing that the time to file

an appeal on the May 5, 2019 [Decision] had expired. The entire prosecution of the case would

have been different had the Clerk entered the Order.” See Levenson Aff., ¶16.

10. Further, as detailed in the Levenson Aff., “Petitioner had no way of knowing

whether the Order was ever entered, because the Housing Part was not an e-filed court, and the

Housing Part clerks routinely never stamped decisions as entered, prior to issuing decisions by

mail.” See, id., at ¶17.

11. It is indisputable, and in fact undisputed, that the Decision/Order should have been

entered contemporaneously to the date it was signed by the judge, and the Court should use its

discretion to correct this defect, pursuant to CPLR 2001.

II- Petitioner is Not Collaterally Estopped from Requesting the May 5, 2019
Order To Be Deemed Entered As of May 5, 2019

12. Respondent next argues that Petitioner is barred, pursuant to the doctrine of

collateral estoppel, from moving this Court to deem the May 5, 2019 Order entered as of May 5,

2019. This is not so.

13. The doctrine of collateral estoppel can be defined as a subset of the broader doctrine

of res judicata, and “precludes 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 or those in privity,

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whether or not the tribunals or causes of action are the same.” Ryan v. NY Tel. Co., 62 N.Y.2d 494,

500 (1984). See also Matter of Dunn, 24 N.Y.3d 699, 704 (2015) (quoting Kaufman v Eli Lilly &

Co., 65 N.Y.2d 449, 456 (1985)(“It is well settled that “collateral estoppel precludes a party from

relitigating ‘an issue which has previously been decided against [her] in a proceeding in which

[she] had a fair opportunity to fully litigate the point.’”); Gilberg v. Barbieri, 53 N.Y.2d 285, 292

(1981) (“when collateral estoppel is in issue, the question as to whether a party had a full and fair

opportunity to litigate a prior determination, involves a practical inquiry into the realities of

litigation.”) (internal citations omitted); Matter of Dunn, 24 N.Y.3d 699, 704 (2015) (“[t]he party

seeking to invoke collateral estoppel has the burden to show the identity of the issues, while the

party trying to avoid application of the doctrine must establish the lack of a full and fair opportunity

to litigate.”).

14. Further, the party invoking collateral estoppel has the burden of showing identity

of issues with the prior proceeding, “while the party trying to avoid application of the doctrine

must establish the lack of a full and fair opportunity to litigate.” Matter of Dunn, 24 N.Y.3d 699,

704 (2015).

15. Here, Respondent argues that “[i]n its prior motion, petitioner argued that it

properly filed a notice of entry in 2019 and that therefore respondent’s time to appeal had lapsed.

That argument was rejected. Petitioner cannot now come back and argue that since its notice of

entry was defective, it should be deemed filed in 2019 nonetheless. That argument not only could

have been raised previously but both arguments have the exact same result.” See Hershey-Webb

Aff., ¶16.

16. Though Respondent’s opposition papers refer to the doctrine of collateral estoppel

and related case law, it appears Respondent is in fact confusing this doctrine with that of judicial

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estoppel. Indeed, it is the doctrine of judicial estoppel, not that of collateral estoppel, which bars

a party from asserting a position contrary to that which it has asserted previously in the proceeding

or in a prior proceeding, as Respondent is arguing here.

17. In any event, neither collateral estoppel nor judicial estoppel apply to the facts at

bar.

18. The doctrine of judicial estoppel does not apply as Petitioner did not maintain a

contrary position in support of its prior motion. As fully admitted in Respondent’s opposition,

Petitioner “argued that it properly filed a notice of entry in 2019 and that therefore respondent’s

time to appeal had lapsed.” See Hershey-Webb Aff., ¶16. The Court rejected this argument,

holding that the notice of entry was premature because the clerk had not entered the order. See

Decision/Order of the Honorable Karen May Bacdayan, JHC, dated August 1, 2022, (“hereinafter

the August 1, 2022 Decision”), NYSCEF Doc. No. 27.

19. Petitioner is now asking the Court to deem the order entered as of May 5, 2019, in

the interest of justice, and precisely because the law of the case is that the Order had not been

entered when Petitioner served a Notice of Entry in 2019. There is nothing contradictory in these

positions, the former being a logical consequence of the latter, such that the doctrine of judicial

estoppel is completely inapposite to the facts at bar.

20. The doctrine of collateral estoppel does not apply to the present facts either. Indeed,

the August 1, 2022 Decision merely held that the notice of entry served by petitioner did not

comply with CPLR 5016 and 5513. The Court did not hold that the May 5, 2019 cannot be deemed

entered on May 5, 2019, in the interest of justice, even though it was not actually entered on that

date. See NYSCEF Doc. No. 27.

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21. As such, the doctrines of judicial estoppel and collateral estoppel are inapplicable

to the case at hand.

III- Petitioner’s Pending Motion at The Appellate Term Did Not Request the Same
Relief

22. As fully admitted by Respondent, “Petitioner has filed a motion to strike

respondent’s appeal at the Appellate Term.” See Hershey-Webb Aff., ¶17.

23. Petitioner’s motion at the Appellate Term requested the appeal to be stricken.

24. Upon information and belief, these two motions therefore seek different relief, such

that there is no impediment to the Court issuing a decision on Motion Sequence No. 5.

CONCLUSION

WHEREFORE, for the reasons set forth herein, in the Levenson Aff. and the Exhibits

attached thereto, Petitioner respectfully requests that this motion be granted in its entirety.

Dated : New York, New York

March 28, 2023
__________________________
BUTNICK & LEVENSON LLP
By: Stephane J. Avouac
Attorneys for Petitioner
60 West 38th Street, Suite 4E
New York, New York 10018
(212) 362-1197
[email protected]

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