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Karina Duvall, also known as Karina Krasnova, against Eliza Devorah Greenberg

DISTRICT COURT OF NASSAU COUNTY
FIRST DISTRICT CIVIL
PART 2

INDEX № CV-006364/2020
KARINA DUVALL A/K/A KARINA KRASNOVA, Plaintiff, against ELIZA DEVORAH GREENBERG, Defendant
Present: Hon. Robert E. Pipia

The following named papers numbered 1 to 7 were submitted on this motion on December 7, 2020

  • Notice of Motion (Summary Judgment)
  • Affirmation of Nosson T. Abrams, Esq. in Opposition
  • Reply Affidavit
  • Notice of Amendment Motion for Summary Judgment
  • Notice of Motion (Sanctions)
  • Cross-Motion
  • Reply for Cross-Motion

In this action, Karina Duvall seeks to recover monies allegedly owed by Eliza Devorah Greenberg in connection with a residential lease agreement. Specifically, the plaintiff alleges that the defendant stayed at the leased premises for nearly two months after the lease had expired and did not make any payments during that time. In response to the Complaint, the defendant asserts a counterclaim for $600.00 for the plaintiff’s alleged failure to return the security deposit. The plaintiff now moves for an order dismissing the defendant’s counterclaim and granting summary judgment in her favor, and against the defendant, for $1,761.27 (plus interest). The plaintiff separately moves for sanctions against both the defendant and their attorney. The defendant opposes both motions and cross-moves for sanctions against the plaintiff. The motions are decided as provided herein.

The "drastic remedy" of summary judgment is appropriate only where there is no doubt as to the existence of a triable issue of fact (see Rotuba Extruders v. Ceppos, 46 NY2d 223, 231 [1978]). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidence in admissible form to demonstrate the absence of any material issues of fact (Winegrad v. New York Univ Med Cen., 64 NY2d 851 [1985]). Once the movant has shown its entitlement to summary judgment, the burden then shifts to the opposing party to produce evidentiary proof in admissible form demonstrating the existence of material issues of fact that necessitate a trial (Zuckerman v. City of New York, 49 NY2d 557 [1980]).

In this case, the plaintiff claims that she is entitled to damages in the amount of $1,761.27 for the period of time after the lease had expired that the defendant remained in possession of the premises located at 95 Brower Avenue, Woodmere NY, 11598. In support of her argument, the plaintiff submits an initialed, signed, and notarized copy of the Residential House Rental Agreement (“First Lease Agreement”) for the subject premises; the original signed and notarized Residential House Rental Agreement (“Second Lease Agreement”); a copy of the defendant’s check dated November 19, 2015, for rent paid in advance until February 1, 2017; and transcripts relating to a prior holdover proceeding commenced against the defendant.

Specifically, the plaintiff argues that the lease term, as stated in the Second Lease Agreement, ended on January 31, 2017. However, the defendant did not vacate the premises until March 21, 2017. Further, the plaintiff claims that the monthly rent was $2,600.00 and that defendant did not make any payments as of February 1, 2017. The plaintiff explains that in order to mitigate her damages, she used the defendant’s previous security deposit of $2,600.00 for the month of February 2017. Therefore, the plaintiff states that she only seeks judgment for the 21 days in March 2017 that the defendant remained in possession after January 31, 2017.

It is undisputed that on October 15, 2015, the plaintiff and defendant entered into the First Lease Agreement for the subject premises. The lease term was from October 19, 2015, through October 18, 2016, at a monthly rent of $2,600.00, plus a security deposit in the amount of $2,600.00 (Plaintiffs' Reply Affidavit, Exhibit C). Pursuant to the lease’s terms, the defendant took possession of the premises on October 19, 2015.

Shortly thereafter, the plaintiff and defendant entered into a Second Lease Agreement. However, the terms of that agreement are a point of contention between the parties. The court notes that there is no dispute that the First Lease Agreement was nullified by a second agreement.

The Second Lease Agreement, which is annexed to the plaintiff’s motion papers, shows that the lease term for the subject premises was from October 19, 2015, through January 31, 2017 (Duvall Affidavit, Exhibit A). The defendant agreed to pay $2,600.00 in rent for the period covering October 19, 2015, to November 19, 2015, as well as a one-time payment of $30,000.00 for the remaining lease term. It further specifies that the $30,000.00 represent upfront payments of $2,068.00 per month for the remaining 14.5 months of the lease period. This document appears to have been signed and notarized by the defendant on October 19, 2015, as well as by the plaintiff on November 7, 2015.

Furthermore, the Second Lease Agreement clearly states that any and all prior agreements or leases between the parties are null and void and that any modifications to the lease may only be made by “a writing signed by both parties”.

As such, Karina Duvall has demonstrated her prima facie entitlement to judgment as a matter of law, thereby shifting the burden to Eliza Devorah Greenberg to raise a triable issue of fact.

In opposition, the defendant disputes the validity of the Second Lease Agreement and asserts that the parties had agreed to a monthly rent of $2,000.00, and a 15-month lease term that ended on February 19, 2017. In support of the defendant’s argument, defense counsel annexes a copy of the purportedly true Residential House Rental Agreement (Defendant’s Cross-Motion Exhibit C), the defendant’s affidavit, and text messages between the plaintiff and defendant dated October 25, 2015, wherein the parties appear to discuss the lease terms. This lease agreement, however, appears to be incomplete and contains only the plaintiff’s alleged initials on two (2) of the three (3) pages that were submitted to this court. In fact, there is no signature page.

Furthermore, the defendant’s assertion in her affidavit that the lease ended on February 19, 2017, is insufficient to raise a triable issue of fact. This argument is contradicted by her testimony in a prior holdover proceeding, wherein she acknowledged on multiple court dates that the lease term ended on January 31, 2017 (Duvall Reply Affidavit, Exhibits F, G)(see Lipsker v 650 Crown Equities, LLC, 81 AD3d 789 [2d Dept 2011][self-serving affidavit contradicting prior sworn testimony failed to raise a triable issue of fact]).

Even if this court were to consider the alleged text messages between the parties, there is no evidence to suggest that the parties agreed to any terms. At best, the messages convey an ongoing negotiation between parties. Moreover, the Second Lease Agreement provided by the plaintiff was signed and notarized by the plaintiff on November 7, 2015, and the defendant made an advance rent payment by check dated November 19, 2015, with a notation that it covered "14.5 months of rent upfront until February 1, 2017" (Defendant’s Cross-Motion at Exhibit C). Both the plaintiff’s signature and the defendant’s payment occurred after the alleged text message exchange. Thus, based upon all of the foregoing evidence, the defendant has failed to raise a triable issue of fact to defeat the plaintiff’s properly supported motion for summary judgment.

Nonetheless, this court disagrees with the plaintiff’s claim that the monthly rent following the execution of the Second Lease Agreement was $2,600.00. A plain reading of the lease shows that rent in the amount of $2,600.00 only pertained to the period of time between October 19, 2015, to November 19, 2015. The subsequent $30,000.00 advance payment of rent appears to have been calculated from a monthly rent of $2,068.00 for the remaining 14.5 months lease term.

Accordingly, it is:

ORDERED that the plaintiff’s motion for summary judgment is granted to the extent that the clerk of this court is directed to enter judgment in favor of the plaintiff and against the defendant, in the amount of $868.90 (plus interest) for the period of time between March 1, 2017, and March 21, 2017, that the defendant unlawfully remained in possession of the premises; it is

ORDERED that the defendant’s counterclaim is dismissed, and it is further

ORDERED that the plaintiff’s motion and the defendant’s cross-motion for the imposition of sanctions are denied.

This constitutes the Decision and Order of the Court.

So Ordered:

HON. ROBERT E. PIPIA

DISTRICT COURT JUDGE – signature

March 1, 2021,

Karina Duvall, pro se

Nosson T. Abrams, Esq.

District Court of Nassau County First Dist Civil Part 2
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