Yehuda Herskovic, Plaintiff(s) v. THE CITY OF NEW YORK (2025)

Recitation, as required by CPLR § 2219(a), of the papers considered in the review of this motion:

Papers Numbered

Order to show Cause/Notice of Motion and

Affidavits /Affirmations annexed 1 & 2

Answering Affidavits/Affirmations 4 (Exh. 1-7)

Reply Affidavits/Affirmations

Memoranda of Law 3 (Exh. 1-12)

Other

Upon the foregoing cited papers, the Decision/Order on the defendants' motion to dismiss (mot. seq. #2) is granted and the plaintiff's motion to compel (mot. seq. #1) is denied, for the following reason(s):

Plaintiff commenced this case on September 30, 2024, by filing a Summons and Complaint for Defendants' failure to "proper[ly] note the real estate tax for the address 225 Ross Street, Brooklyn, NY 11211." The matter was marked for inquest on December 19, 2024, but Defendants appeared by counsel on or about January 28, 2025, and the parties stipulated to vacatur of the inquest marking and for Defendants to file a late Answer. Defendants filed their pre-Answer motion to dismiss on April 4, 2025, and opposition papers were filed by Plaintiff on April 29, 2025. Defendants waive their Reply.

Defendants' motion seeks to dismiss (1) the complaint pursuant to CPLR § 3211 (a)(1), (2), (5), (7), and GML § 50-e(2)(3) for all of Defendants' claims prior to April 2022 and after August 2024, and (2) Plaintiff's motion to compel as moot. Plaintiff, in his Opposition, argues that Defendants' motion to dismiss be denied as Defendants failed to file a timely Answer. The Court addresses each of the parties' contentions below.

DEFENDANTS' MOTION TO DISMISS

CPLR § 3211 (a)(7)

On a motion pursuant to CPLR § 3211(a)(7) to dismiss a complaint for failure to state a cause of action, the court must afford the pleading a liberal construction, accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Goshen v. Mutual Life Ins. Co. of NY, 98 NY2d 314, 326 [2002]; Leon v. Martinez, 84 NY2d 83, 87 [1994] ). "Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove [his or her] claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss" (Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38 [2nd Dept., 2006]; see also, EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]; Tooma v. Grossbarth, 121 AD3d 1093, 1095 [2nd Dept., 2014])(emphasis added).

Although Defendants argue that Plaintiff has failed to properly plead a cause of action, the Court disagrees. Plaintiff is seeking a refund of the payments he believes were made in excess of what was owed and billed by Defendants. He argued he overpaid during specific months and that those payments be refunded to him. The complaint, which was on an official standard court form, along with the opposition papers and oral arguments, when considered collectively and afforded a liberal construction, fit within a cognizable legal theory. Consequently, the complaint cannot be dismissed on this basis.

CPLR § 3211 (a)(2) and (5): Lack of Subject Matter Jurisdiction & Expiration of Statute of Limitations

A party may move for dismissal pursuant to CPLR § 3211 (a)(2) on the grounds that the court lacks subject matter jurisdiction.

Article 78 proceedings are commenced to challenge decisions made by state or local government agencies. Specifically, it allows individuals to seek judicial review of an agency's decision or to compel an agency to perform a duty it is legally obligated to perform. NY CLS. CPLR § 7803. Defendants argue that because Plaintiff's complaint alleges that the Department of Finance, an agency, failed to reflect an alleged tax payment towards Plaintiff's real property taxes due and owing, Plaintiff should have commenced an Article 78 proceeding instead of this instant matter. The crux of Defendants' arguments is the applicable statute of limitations in Article 78 proceedings, while its arguments were sparse concerning why Plaintiff would have had to commence an Article 78 proceeding in the first place. Although Defendants cite to CPLR § 7803, there is nothing on the record to support the conclusion that a hearing or a decision was rendered by the Department of Finance that Plaintiff would be required to seek judicial review of. In essence, a decision made by a state or local government agency is a condition precedent to bringing an Article 78 proceeding. Without a prior decision or determination made by an agency in this case, there is nothing to seek review of in an Article 78 proceeding.

To the extent Defendants argue Plaintiff should have commenced an RPTL Article 7 proceeding against the Tax Commission to contest his tax assessment, that issue is not before the court. As stated above, Plaintiff's complaint seeks the return of funds he believes he overpaid, and does not dispute the amount he was billed, assessed or required to pay. Since no real property tax assessment issues were presented, Plaintiff was not required to exhaust his administrative remedies with the Tax Commission before bringing this action.

The Court finds Defendants have not established entitlement to dismissal under CPLR § 3211 (a)(2).

NONCOMPLIANCE WITH GML § 50-e(2)(3)

The filing of a notice of claim is a condition precedent to the commencement of an action to prosecute a claim against the City of NYC (Gen. Mun. L. § 50-e[1][a]). The notice must apprise the City and NYCHHC of the following: (i) the claimant's name and address and, if claimant is represented, his attorney's; (ii) "the nature of the claim"; (iii) "the time when, the place where and the manner in which the claim arose"; and (iv) the injuries or damages alleged. Gen. Mun. L. § 50-e(2). The purpose of the notice of claim requirement is to afford the municipality an adequate opportunity to timely investigate and defend the claim. Adrian v. Town of Oyster Bay, 262 AD2d 433 (2nd Dept., 1999). Indeed, "[t]he test of the sufficiency of a notice of claim is merely whether it includes information sufficient to enable the city to investigate" (Rosenbaum v. City of New York, 8 NY3d 1, 7, 861 N.E.2d 43, 828 N.Y.S.2d 228 [2006], citing, Brown v. City of New York, 95 NY2d 389, 740 N.E.2d 1078, 718 N.Y.S.2d 4 [2000] [internal quotation marks and citations omitted]). Therefore, the notice of claim must contain a sufficient description of "the place," "the time," and "the nature" of the claim. Id.

At any time after the service of a notice of claim and at any stage of an action or special proceeding to which the provisions of this section are applicable, a mistake, omission, irregularity or defect made in good faith in the notice of claim required to be served by this section, not pertaining to the manner or time of service thereof, may be corrected, supplied or disregarded, as the case may be, in the discretion of the court, provided it shall appear that the other party was not prejudiced thereby. NY CLS. Gen. Mun. § 50-e(6).

In the instant case, it cannot be said that the notice of claim was patently defective since it provided the "place where" and "the manner in which the claim arose." What is in dispute is whether Plaintiff's notice of claim met the requirements for "the time." Defendants argue that Plaintiff's Notice of Claim alleged the billing issues occurred between April 7, 2022, and August 20, 2024, and that those dates do not match the dates alleged in the complaint as beginning from January 17, 2017. Defendants further argue that because the dates do not match, Plaintiff has not complied with the notice of claim requirements and his complaint must be dismissed. Although Plaintiff did not address this argument in his papers or during oral arguments, the Court declines to make a finding on the issue of substantial compliance with the notice of claim requirements at this stage. However, the Court notes that Defendants previously provided Plaintiff some records, dating as far back as 2016, and have not asserted an inability to conduct a meaningful investigation of this case based on the dates provided in the notice of claim, nor have Defendants established that any prejudice will arise as a result of Plaintiff's "mistake, omission, irregularity or defect made in good faith in the notice of claim."

In any event, the Court need not make a finding under this subsection of CPLR § 3211 due to the Court's determination below.

CPLR § 3211 (a)(1)

In deciding a motion under CPLR § 3211 (a)(1), the motion may be granted "only where the documentary evidence utterly refutes [the non-moving party's] factual allegations, conclusively establishing a defense as a matter of law." Goshen v. Mutual Life Ins. Co. of New York, 98 NY2d 314 (2002).

Defendants have tendered documentary evidence, including a Detailed Account History. Plaintiff has also tendered bank records. Defendants argue there is a zero balance due on Plaintiff's account, and Plaintiff has not alleged he was double charged at any time during the subject period. During oral arguments, the Court gave Plaintiff ample opportunities to refute Defendants' claims, however, it became readily apparent that Plaintiff's overpayment claims, specifically payments made in January and October 2021, were belied by his bank records where it showed that the disputed amounts were refunded back to the subject bank account shortly after payments were sent to Defendants. Whether Plaintiff stopped payment, or the funds were returned to the account by no act of Plaintiff, is irrelevant. What is of utmost importance is that the records, on its face, do not support Plaintiff's position that he overpaid and entitled to a refund.

The court finds that Defendants have established that the documentary evidence utterly refutes Plaintiff's factual allegations, conclusively establishing Defendants' defense as a matter of law. Dismissal of the complaint is warranted under CPLR § 3211 (a)(1).

PLAINTIFF'S REQUEST FOR DEFAULT JUDGMENT

In his Opposition, Plaintiff argues that Defendants' Answer is untimely and that the court should deny Defendants' motion to dismiss the complaint and enter a default judgment against Defendants. Plaintiff does not address the two stipulations he signed with Defendants, dated January 28, 2025, and March 26, 2025, first agreeing to give Defendants additional time to file their Answer, and then extending that time in the second stipulation. The Court notes that without the stipulations, Defendants would have been compelled to seek leave of Court to file a late Answer. That extra step was obviated by the stipulations the parties agreed to and Plaintiff cannot now move for a default judgment against Defendants. Additionally, the relief Plaintiff seeks, to wit, a default judgment, cannot be achieved through its opposition papers, where advance notice of the request was not sought in a motion.

Based on the parties' stipulations, Plaintiff's request seeking a default judgment against Defendants is denied.

PLAINTIFF'S MOTION TO COMPEL DISCOVERY (MOT. SEQ. #1)

Plaintiff filed a motion seeking discovery from Defendants. Given the Court's determination granting Defendants' motion to dismiss the complaint, Plaintiff's motion to compel discovery is denied as moot.

Accordingly, it is hereby

ORDERED, that Defendants' motion to dismiss (mot. seq. #2) is granted under § CPLR 3211 (a)(1), and the complaint is dismissed in its entirety; and it is further

ORDERED, that Plaintiff's motion to compel discovery, dated March 12, 2025, is denied as moot in light of the Court's decision herein.

This constitutes the decision and order of the Court.

Date: May 15, 2025

Hon. Lola Waterman, Civil Court Judge (NYC)

Lola Waterman, J.