Opinion
No. 23317/10.
2011-02-3
Ron FRIEDMAN, Plaintiff, v. CLEARVIEW GARDENS SECOND CORP., Defendant.
Aaron David Frishberg, Esq., New York, For the Plaintiff. Hankin & Mazel, PLLC, by Mark L. Hankin, Esq., New York, for the Defendant.
Aaron David Frishberg, Esq., New York, For the Plaintiff. Hankin & Mazel, PLLC, by Mark L. Hankin, Esq., New York, for the Defendant.
CHARLES J. MARKEY, J.
In this action for declaratory and injunctive relief and to recover damages for emotional distress, the plaintiff Ron Friedman moves for a preliminary injunction and defendant cross-moves pursuant to CPLR 3211(a)(3) and (a)(7) to dismiss the complaint.
Plaintiff Ron Friedman is the occupant of an apartment at 17–04 201st Street, Bayside, in Queens County, New York, a cooperative housing development owned by the defendant. Friedman has resided in the apartment since he moved there with his parents in 1959 when he was five years old. Eleanore Friedman, plaintiff's mother, became the sole owner of one share of the stock of defendant cooperative corporation and proprietary lessee of the apartment upon the death of her husband in 1979, and continued to reside in the apartment with plaintiff until 1990. Thereafter, the plaintiff paid the monthly maintenance charges to defendant.
Eleanore Friedman died testate on July 6, 2006. Letters testamentary were issued to plaintiff's brother, Daniel M. Friedman, by the Surrogate's Court, Queens County, on June 20, 2007. Under the terms of decedent's will, her entire estate, real and personal, was bequeathed to her trustee under a trust she created by an agreement dated January 29, 2001. Plaintiff claims to be a trust beneficiary and to be designated as the beneficiary of the one share of stock of defendant cooperative corporation.
On or about August 1, 2010, defendant served plaintiff with a 30–day notice for his removal from the premises as a squatter or holdover licensee, based upon the 2006 death of decedent shareholder/proprietary lessee. Plaintiff then commenced this action for (1) a judgment declaring that he is entitled to reside in the apartment and have the share reissued in his name, (2) an injunction requiring defendant to permit the transfer of the share, to issue a share in his name and to place his name on the proprietary lease for the apartment, (3) an injunction prohibiting defendant from commencing a summary licensee holdover proceeding against him, and (4) money damages for intentional infliction of emotional distress. On this motion, plaintiff seeks to enjoin defendant from commencing or continuing a holdover proceeding against him pending the determination of this action. Defendant cross-moves to dismiss the complaint based upon a lack of capacity to sue and failure to state a cause of action.
Pursuant to section 3(e) of article IV of defendant's bylaws, when a tenant/shareholder dies, the stock the decedent owned in defendant may, upon satisfaction of certain terms and conditions, be transferred to one of the decedent's children. The bylaw requires that the shares of stock of the deceased shareholder “shall be transferred only by a person or persons legally designated or permitted to act on behalf of the deceased”. (Article IV, section 3[e].) In addition, only a duly appointed personal representative may bring suit on behalf of a decedent's estate. (EPTL § 11–3.1.) Thus, although plaintiff clearly has an interest in the cause of action for declaratory and injunctive relief, he may not maintain that cause of action individually.
In reply papers, plaintiff has submitted a copy of a power of attorney given to him by his brother, Daniel M. Friedman, the executor of the estate of Eleanore Friedman, purporting to grant plaintiff the power to request on behalf of the estate that decedent's share in the cooperative be transferred to plaintiff. Even assuming that this delegation of authority encompasses the power to commence an action to compel the transfer, however, an executor is not authorized to give a power of attorney granting powers to act on the executor's behalf as personal representative of the estate of decedent ( See, Matter of Sadlo, 25 Misc.3d 1205[A], 2009 WL 3066665, 2009 N.Y. Slip Op 51981[U] [Sur Ct Dutchess County 2009]; Matter of Jones, 1 Misc.3d 688, 689 [Sur Ct Broome County 2003].) The duty of a fiduciary is personal and cannot be divested by delegation (Matter of Jones, 1 Misc.3d 688,supra ). The proffered power of attorney is, therefore, ineffective to provide plaintiff with the authority to prosecute the cause of action concerning the transfer of the stock share in place of the executor.
It appears, however, that the personal representative of decedent's estate may be interested in pursuing the declaratory and injunctive relief regarding the stock share that is sought in the first cause of action. Accordingly, the part of the cross motion that is to dismiss the first cause of action is granted unless, within 45 days of service of a copy of the order to be entered hereon with notice of entry thereof, Daniel M. Friedman, as executor of the estate of Eleanore Friedman, joins this action as a party plaintiff in the prosecution of the first cause of action.
The purpose of a preliminary injunction is to maintain the status quo ( see, Masjid Usman, Inc. v. Beech 140, LLC, 68 AD3d 942 [2nd Dept.2009]; Weinreb Mgt., LLC v. KBD Mgt., Inc., 22 AD3d 571 [2nd Dept.2005] ). The Civil Court does not possess the necessary jurisdiction to order the transfer of the stock share and proprietary lease (Civil Court Act, art 2; see, Abed v. Zach Assoc ., 124 A.D.2d 531 [2nd Dept.1986]; 170 West 85 St. HDFC v. Jones, 176 Misc.2d 262 [NYC Civ Ct New York County 1998] ). Under the circumstances herein, including plaintiff's threatened loss of his home of more than 50 years, the preservation of the status quo by the issuance of a preliminary injunction is warranted ( see, Abed, 124 A.D.2d at 532;Schlosser v. United Presbyterian Home at Syosset, Inc., 56 A.D.2d 615 [2nd Dept.1977] ).
Plaintiff's motion, accordingly, is granted to the extent that, pending the determination of this action, the defendant is enjoined from commencing or prosecuting a summary holdover proceeding against plaintiff. The foregoing relief is conditioned upon plaintiff providing an undertaking in accordance with CPLR 6312, in an amount to be fixed in the order to be settled hereon. Upon settlement of the order, the parties may submit proof and recommendations as to the amount of the undertaking ( see, NSA, Inc. v. L.I.C. Food Court, Inc., 2009 WL 1904683, 2009 N.Y. Slip Op 51411[U] [Sup Ct Queens County 2009] [decision by the undersigned]; Chiu Cheuk Chan v. 28–42, LLC, 2009 WL 129893, 2009 N.Y. Slip Op 50080[U] [Sup Ct Queens County 2009] [decision by the undersigned]; Nand Land LAL v. Shiri Guru Ravidas Sabha of New York Inc., 2008 N.Y. Slip Op 51720[U] [Sup Ct Queens County 2008]; Daily Bread Café Inc. v. City Lights at Queens Landing Inc., 2007 WL 3375899, 2007 N.Y. Slip Op 52158 [Sup Ct Queens County 2007]; Molyneux–Petraglia v. Northbridge Capital Mgmt. Inc., 2007 WL 1203597, 2007 N.Y. Slip Op 50845[U] [Sup Ct N.Y. County 2007]; Citadel Mgt. Inc. v. Hertzog, 182 Misc.2d 902, 906 [Sup Ct Queens County 1999]; Connor v. Cuomo, 161 Misc.2d 889, 897 [Sup Ct Kings County 1994]; Jewelry Realty Corp. v. 55 West 47 Co., 90 Misc.2d 407, 408 [Sup Ct N.Y. County 1977] ).
The branch of the cross motion that is to dismiss the second cause of action sounding in intentional infliction of emotional distress for failure to state a cause of action is granted. The facts alleged do not constitute the type of extreme and outrageous conduct necessary to sustain a claim for intentional infliction of emotional distress ( see, Howell v. New York Post Co., 81 N.Y.2d 115 [1993];Levy v. Grandone, 14 AD3d 660, 662 [2nd Dept.2005] ).
Settle order.