Respondents were represented by the same counsel as in this proceeding, but Petitioner was
represented by different counsel. Petitioners filed an answer on or about April 23, 2007 (Exhibit
Y1). The answer asserted six affirmative defenses but no counterclaims.
On or about March 2007, Respondents moved by Order to Show Cause for an order
consolidating the Supreme Court Action with this summary proceeding. On April 26, 2007, the
motion was denied per written order, because the moving papers failed to identify the name of
the case, the index number and common questions of law and fact of the case sought to be
consolidated.
On or about May 27, 2008, Petitioner moved for summary judgment and sought an order
dismissing the complaint, or alternatively granting partial summary judgment or a Frye
hearing on the grounds that Respondents could not establish causation between the alleged leak,
and any mold and subsequent illness. The motion for summary judgment was granted on
September 17, 2008 (Exhibit 11). The Court found that Respondents had only established a
single leak from the apartment above, failed to establish negligence on the part of Petitioner,
failed to establish that Petitioner had prior notice of a defect, failed to establish that any medical
illness was a result of alleged conditions, and failed to establish property damage. Judgment was
entered October 8, 2008 dismissing the complaint in its entirety and awarding Petitioner $485.00
for costs and disbursements.
On or about November 2008, Respondents moved for re-argument and renewal, the motion
was denied on February 4, 2009.
FINDINGS OF FACT
[*5]
Respondents are the owners of 596 shares of Petitioner,
and proprietary lessees of the Subject Premises, pursuant to a proprietary lease dated September