Opinion
Index No. LT-855/20
08-18-2022
99 Randall Avenue Owners Corp., Petitioner, v. Emanuel Strong and Deidre Strong, Respondents.
Petitioner Attorney: Thomas A. Bizzaro, Esq of Schneider Buchel, LLP Respondents Attorney: Ronald D. Weiss, P.C.Respondents -Pro Se (as of 4.19.22) Emanuel Strong and Deirdre Strong
Unpublished Opinion
Petitioner Attorney: Thomas A. Bizzaro, Esq of Schneider Buchel, LLP
Respondents Attorney: Ronald D. Weiss, P.C.Respondents -Pro Se (as of 4.19.22) Emanuel Strong and Deirdre Strong
GARY M. CARLTON DISTRICT COURT JUDGE
Papers Considered:
Petitioner's Motion for Summary Judgment filed July 27, 2020 1
Affidavit in Opposition of Motion filed March 4, 2022 2
Respondents' Notice of Motion for Dismissal of this Action filed April 19, 2022 3
Affirmation in Opposition filed on May 12, 2022 4
The Petitioner commenced this holdover proceeding seeking to recover possession of the property located at 99 Randall Avenue, Apt 4P, Freeport, New York. The petition alleges a breach of the Proprietary Lease and House Rules based upon respondents' objectionable conduct. The petitioner seeks a judgment of possession and warrant of eviction, along with a money judgment for maintenance /rent, additional maintenance/rent and use and occupancy in the amount of $7,101.81. The petition also seeks attorney's fees in the sum of $5,000.00, together with costs and disbursements. On July 27, 2020, the petitioner filed a motion pursuant to CPLR 3212, granting summary judgment in its favor, and for an order dismissing respondents' counterclaims. In March of 2022, the respondents filed opposition and on April 19, 2022, the respondents filed a motion to dismiss pursuant to CPLR 3211. Opposition to that motion was filed by petitioner on May 12, 2022. The respective motions are determined as provided herein.
Summary judgment is drastic relief - - it denies one party the opportunity to go to trial. Thus, summary judgment should only be granted where there are no triable issues of fact (see Andre v Pomeroy, 35 N.Y.2d 361 [1974]). The focus for the court is on issue finding, not issue determining (see Hantz v Fishman, 155 A.D.2d 415 [2d Dept 1989]).
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. Failure to make such a prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Alvarez v Prospect Hosp., 68 N.Y.2d 320 [1986]; Winegrad v NY Univ. Med. Ctr., 64 N.Y.2d 851 [1985]). Once the movant has demonstrated a prima facie showing, the burden shifts to the non-moving party, to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact, which require a trial of the action (see Zuckerman v New York, 49 N.Y.2d 557 [1980]).
In the case at bar, the respondents took possession of apartment 4P, pursuant to a Proprietary Lease (Petitioner's Notice of Motion, Exhibit C). A Notice to Terminate the Proprietary lease was served on respondents via first class and certified mail return receipt requested on December 11, 2019. Said termination notice informed respondents that their lease was terminated and their tenancy expired on December 21, 2019, based upon their violation of Paragraphs 13, 24, 25, 31(f), and Paragraphs 1 and Section 3(2) of the House Rules. The respondents failed to vacate and the petitioner commenced the instant holdover proceeding. Annexed to the petition is a copy of the Notice of Additional Objectionable Conduct, dated November 4, 2019; a copy of the Notice of Termination; a copy of the Notice of 99 Randall Avenue, Owner's Corp., Special Meeting of the Board of Directors; a copy of the Certificate of Resolution; a copy of the Notice of Default, Thirty (30) Days Notice to Cure and Notice of Intention of Terminate Proprietary Lease, dated June 14, 2019; a copy of the Affidavit of Service of the Notice of Termination, dated December 10, 2019; a copy of the Statement of Account demonstrating the outstanding monthly charges; and a copy of the Affidavit of Service of the Thirty (30) day Notice to Cure.
In support of the petitioner's motion for summary judgment, the petitioner submits the affirmation of counsel, the affidavit of Joseph Cutrone, the President of Board of Directors, and the affidavit of Angie Vazquez, the managing agent of the co-op. The affidavit of Mr. Cutrone, which is based upon personal knowledge, states that the respondents purchased certain shares of stock in the co-op 99 Randall Avenue Owner's Corp., and were issued a Proprietary lease. A copy of the Stock Certificate, the Bylaws and House Rules (governing documents) are annexed to petitioner's motion as Exhibits A, B, and C. It is alleged that in November of 2016, the respondents began to engage in a pattern of severely disruptive and extremely objectionable conduct. In his affidavit, Mr. Cutrone outlines twenty-one incidents of objectionable conduct which are alleged to have began in November of 2016 and continued through June of 2019. It is alleged that respondents falsely accused members of the board of engaging in acts, including but not limited to, grand larceny, election fraud, harassment, lying, cheating, stealing, and racketeering. It is asserted that respondents repeated conduct is in violation of not only the proprietary lease but the co-op's House Rules. As a result, on June 14, 2019, the petitioner served a Notice of Default, a Thirty Day Notice to Cure and a Notice of Intention to Terminate respondents' Proprietary Lease, via certified mail (Notice of Motion, Exhibit X). The notice of default demanded that the respondents cease all objectionable conduct on or before July 19, 2019, or the lease would be terminated in accordance with the proprietary lease.
Despite the above notice, Mr. Cutrone asserts that the respondents continued to behave in a course of objectionable conduct. This resulted in the board holding a meeting on September 24, 2019, wherein the board voted to hold a "special" meeting to determine whether to terminate the respondents' lease (Notice of Motion, Exhibit Y). On November 4, 2019, the co-op served respondents with a Notice of Additional Objectionable conduct (Notice of Motion, Exhibit Z). The notice also notified respondents that a special meeting of the board of directors was being held to determine whether the respondents' proprietary lease would be terminated. The meeting was ultimately held on December 10, 2019. Notably, respondent Emanuel Strong appeared at the meeting along with his attorney. Respondent Deidre Strong did not appear. A copy of the transcript of the minutes of the special meeting is annexed to Petitioner's motion as Exhibit AA. According to Mr. Cutrone, respondent Strong was given an opportunity to question each board member and the Superintendent and was afforded the opportunity to make statements at the meeting. Mr. Cutrone also asserts that respondent spoke at the meeting in his own defense. At the conclusion of the special meeting, two-thirds of the board of directors voted to terminate respondents' lease based upon the numerous acts of objectionable conduct.
The petitioner also submits the affidavit of Angie Vazquez, the managing agent of the co-op. She asserts that she has personal knowledge of the facts herein. She states that around January of 2019, the apartment directly below respondents began to experience a water leak. In order to determine the source of the leak, the co-op requested access to the respondents' apartment. On February 7, 2019, she attended an inspection of respondents' apartment together with the buildings superintendent which revealed missing tile in respondents' bathroom likely causing the leak. She contends that despite the co-ops best efforts to address the ongoing leak originating in the respondents' unit, respondents have repeatedly frustrated each and every effort made by the co-op and managing agent to make the necessary repairs in violation of Paragraph 18 of the Proprietary Lease. Paragraph 18 of the lease requires the lessee to keep the interior of the apartment "in good repair" (Notice of Motion, Exhibit C). To date, Ms. Vazquez contends that the leak emanating from respondents' bathroom continues to exist causing water damage to the apartment below.
The petitioner also submits the affirmation of counsel, who contends that the co-op's bylaws expressly provide that a shareholder's Proprietary Lease can be terminated by a vote of the Board of Directors, where it is determined that a shareholder's conduct is objectionable (Affirmation in Support, p.2, ¶5). Counsel argues that here the respondents committed numerous and substantial acts of objectionable conduct over more than a two year period, resulting in the board's vote to terminate respondents' proprietary lease following a "special meeting" (id. at 6). Counsel argues that respondents were represented by counsel at the meeting and were given a full and fair opportunity to be heard.
Counsel further asserts that the board strictly followed and enforced the terms of the lease and all applicable provisions of the Bylaws when terminating respondents' tenancy. In support thereof, counsel relies upon Paragraphs 18(a), (b), 24, 31(e), and (f) of the lease, the Bylaws, House Rules, and various case law including 40 West 67th Street v Pullman, 100 N.Y.2d 147 (2003), Lincoln Guild Housing Corporation v Ovadiah, 49 Misc.3d 147 (A) (App Term, 2015), Gordan v 476 Broadway Realty Corporation, 129 A.D.3d 547 (1st Dept 2015), Breezy Point Cooperative, Inc., v Young, 16 Misc.3d 101 (App Term 2007), Trump Plaza Owners, Inc., v Weitzner, 47 A.D.3d 525 (1st Dept 2008), and Surfair Equities Inc., v Marin, 66 Misc.3d 1216 (A) (2020).
In 40 West 67th Street Corporation v Pullman, 100 N.Y.2d 147, 153-154 (2003), the Court of Appeals discussed the standard of review to be applied when a cooperative exercises its agreed-upon right to terminate a tenancy based on a shareholder-tenant's objectionable conduct. In doing so, the court held that the business judgment rule required the court to defer to a cooperative board's determination. In so holding, the court reasoned:
"In the context of cooperative dwellings, the business judgment rule provides that a court should defer to a cooperative board's determination '[s]o long as the board acts for the purposes of the cooperative, within the scope of its authority and in good faith' (id. at 538, 554 N.Y.S.2d 807, 553 N.E.2d 1317). In adopting this rule, we recognized that a cooperative board's broad powers could lead to abuse through arbitrary or malicious decision making, unlawful discrimination or the like. However, we also aimed to avoid impairing 'the purposes for which the residential community and its governing structure were formed: protection of the interest of the entire community of residents in an environment managed by the board for the common benefit' (id. at 537, 554 N.Y.S.2d 807, 553 N.E.2d 1317). The Court concluded that the business judgment rule best balances these competing interests and also noted that the limited judicial review afforded by the rule protects the cooperative's decisions against 'undue court involvement and judicial second-guessing' (id. at 540, 554 N.Y.S.2d 807, 553 N.E.2d 1317)."
Petitioner argues that here, the business judgment rule prevents this court from reviewing the board's decision. The petitioner also contends that respondents' lease was properly terminated in accordance with the terms of the lease. Counsel argues that generally a proprietary lease will either permit (1) termination based upon a vote of the shareholders; (2) termination based upon the vote of both the shareholders and the Board of Directors, or (3) termination based upon the vote of the Board of Director's only. Counsel asserts that in the case at bar, the lease herein only required a termination based upon a vote of the board of directors. Counsel contends that at the special meeting five (5) of the seven (7) board members were present and as such, a quorum was met. Thereafter, more than "two-thirds (2/3) of the Copop's Board of Director's unanimously voted to terminate the Respondents' Proprietary Lease due to Respondents' objectionable conduct" (Affirmation in Support, p.8-9, ¶32).
In support of this conclusion that only a two-thirds (2/3) vote of the board is required, counsel relies upon Paragraph 31(f) of the Proprietary Lease, entitled "Lessee's objectionable conduct" which provides:
"If at any time the Lessor shall determine, upon the affirmative vote of two-thirds of its then Board of Directors, at a meeting duly called for that purpose, that because of objectionable conduct on the part of the Lessee, or of a person dwelling or visiting in the Apartment, repeated after written notice from the Lessor, the tenancy of the Lessee is undesirable (it being understood, without limiting the generality of the foregoing, that repeatedly to violate or disregard the House Rules hereto attached or hereafter established in accordance with the provisions of this lease, or to permit or tolerate a person or dissolute, loose or immoral character to enter or remain in the building or in the Apartment, shall be deemed to be objectionable conduct)."
However, despite the above-noted sworn statements and documentary evidence submitted therewith, the court finds that the petitioner failed to comply with Paragraph 31(g) of the proprietary lease entitled, "Termination of All Proprietary Leases" (emphasis added). It provides:
"If at any time the Lessor shall determine, upon the affirmative vote of two-thirds of its then Board of Directors at a meeting of such directors duly called for that purpose, and the affirmative vote of the record holders of at least 80% in the amount of its then issued shares, at a shareholders' meeting duly called for that purpose, to terminate all proprietary leases" (emphasis added).
This court rejects petitioner's claim that the lease only required a vote of two-thirds of the board of directors, or just four votes to terminate this respondents' tenancy. The plain language of the contract provides that in addition to the two-thirds vote, a vote of the record holders of at least 80% of the amount of the then issued shares was required. This conclusion is in accord with 40 West 67th Street Corporation v Pullman, 100 N.Y.2d 147, 151-152 (2003), wherein the court provided:
"In reaction to defendant's behavior, the cooperative called a special meeting pursuant to article III (First) (f) of the lease agreement, which provides for termination of the tenancy if the cooperative by a two-thirds vote determines that 'because of objectionable conduct on the part of the Lessee * * * the tenancy of the Lessee is undesirable.' The cooperative informed the shareholders that the purpose of the meeting was to determine whether defendant 'engaged in repeated actions inimical to cooperative living and objectionable to the Corporation and its stockholders that make his continued tenancy undesirable.
Timely notice of the meeting was sent to all shareholders in the cooperative, including defendant. At the ensuing meeting, held in June 2000, owners of more than 75% of the outstanding shares in the cooperative were present. Defendant chose not attend. By a vote of 2,048 shares to 0, the shareholders in attendance passed a resolution declaring defendant's conduct 'objectionable' and directing the Board to terminate his proprietary lease and cancel his shares. The resolution contained the findings upon which the shareholders concluded that defendant's behavior was inimical to cooperative living. Pursuant to the resolution, the Board sent defendant a notice of termination requiring him to vacate his apartment by August 31, 2000."
In the case at bar, counsel's motion is premised on the termination of the lease solely in accordance with Paragraph 31(f). There is no mention anywhere by counsel of compliance with paragraph 31(g). Paragraph 31(f) determined objectionable conduct, paragraph 31(g) was the procedure to terminate the lease. The court cannot find as a matter of law that petitioner followed the requisite procedures in terminating the underlying tenancy. Therefore the court finds that the petitioner has failed to meet its prima facie burden on its motion for summary judgment. As such, the burden does not shift to the respondents. According, the petitioner's motion for summary judgment is denied. Petitioner also moves for an order pursuant to CPLR §3211(a)(7) dismissing the respondents' second counterclaim asserted in their amended answer filed with the court on March 4, 2022. The respondents' second counterclaim (and their seventh affirmative defense) seeks damages for retaliatory eviction based "upon the Boards's improper retaliatory termination of the Respondent's Proprietary Lease" (Amended Answer, p.12 ¶26).
Real Property Law §232-b entitled "Retaliation by landlord against tenant" provides in relevant part that "[n]o landlord of premises or units to which this section is applicable shall serve a notice to quit upon any tenant or commence any action to recover real property or summary proceeding to recover possession of real property in retaliation for [a] good faith complaint, by or in behalf of the tenant."In determining a motion to dismiss a cause of action pursuant to CPLR §3211(a)(7), or, as in this case, a counterclaim, "the pleading is afforded a liberal construction, the facts alleged are accepted as true, and the proponent of the pleading is accorded the benefit of every favorable inference" (Bank of America N.A. v 414 Midland Ave. Assoc., LLC, 78 A.D.3d 746, 748 [2d Dept 2010], citing Leon v Martinez, 84 N.Y.2d 83, 87-88 [1994]).
As stated in Medical Arts Offices Services, Inc. v Erber, 89 A.D.3d 698, 699 (2d Dept 2011):
"On a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory'" (Breytman v. Olinville Realty, LLC, 54 A.D.3d 703, 703-704, 864 N.Y.S.2d 70; see Leon v. Martinez, 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972, 638 N.E.2d 511). A motion to dismiss pursuant to CPLR 3211(a)(7) will fail if, 'taking all facts alleged as true and according them every possible inference favorable to the plaintiff, the complaint states in some recognizable form any cause of action known to our law' (Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 A.D.3d 34, 38, 827 N.Y.S.2d 231)."
Here, the allegations contained in respondents' amended answer contain sufficient facts to set forth a cause of action. Accordingly, the petitioner's motion to dismiss the respondents' second counterclaim, is denied.
Petitioner's motion to dismiss respondents' fifth counterclaim which alleges a cause of action for breach of their "quiet enjoyment" is granted. To establish a breach of the covenant of quiet enjoyment, a tenant must show either an actual or constructive eviction (Grammer v Turits, 271 A.D.2d 644, 645-46 [2d Dept 2000] citing Herstein Co. v. Columbia Pictures Corp., 4 N.Y.2d 117 [1958]). "A constructive eviction occurs where the landlord's wrongful acts substantially and materially deprive the tenant of the beneficial use and enjoyment of the leased premises" (Barash v Pennsylvania Term. Real Estate Corp., 26 N.Y.2d 77, 83 [1970]). Simply put, here there are no allegations to support this counterclaim. Accordingly, the petitioner's motion for dismissal of this counterclaim, is granted.
Turning to respondents' motion, the respondents move for an order pursuant to CPLR 3211 granting dismissal of this action in its entirety with prejudice and for an order granting a money judgment on their counterclaims. Notably, respondents' amended answer contains twenty-nine affirmative defenses and six counterclaims. The court has carefully considered all of the arguments raised by respondents. In doing so, their motion is denied in its entirety, as they fail to set forth sufficient grounds for the requested relief. Respondents additional request for attorney's fees and sanctions is presently denied.
In light of the lengthy history in this proceeding and the fact that respondents have filed six (6) prior motions, it is hereby ordered that no further motions shall be filed by respondents without leave of court. The parties are directed to appear at a pre-trial conference in room 279, on September 2, 2022 at 9:30 A.M. at which time a date will be scheduled for a trial of this action.
This constitutes the decision and order of the court.