Opinion
103647/10.
Decided March 18, 2011.
James J. Corbet, Esq.New York, NY Attorneys Plaintiffs.
Board of Mgrs. Indiv., Attorneys Defendant.
Marvin Goodman, LLP., By: Rodrigo Armand, Jr. Esq., Attorney for Defendant, Defendants.
Porzio, Bromberg Newman, PC By: Joshua Abramson, Esq. T-Mobile Northeast.
In this action, the Court is called upon to resolve a 3-way dispute involving a condominium board, a group of unit owners and T-Mobile Northeast, LLC ("T-Mobile") over the installation of wireless facilities on the roof of the condominium.
The Pleadings
The unit owners have sued T-Mobile; the condominium board and the individual board members for, inter alia , an injunction preventing the enforcement of the lease granted by the board to T-Mobile to erect the wireless facilities. T-Mobile seeks declaratory relief establishing the validity o the lease and damages. The board and individual board members generally deny the plaintiffs' claims.
The Motions
The plaintiffs move for summary judgment declaring the invalidity of the lease, and a permanent injunction against its enforcement. T-Mobile and the Board of Managers with the individual board members cross move to dismiss the complaint.
The Court notes that in its decision dated November 3, 2010 that it dismissed this action against all the individual board members. For the reasons that follow, the motion by plaintiffs for summary judgment is denied and the cross-motions of T-Mobile and the condominium board and its members are granted.
Background
In September 2009, T-Mobile entered into a lease with the condominium board to install a wireless facility on the roof of the condominium. Several months later when some of the residents discovered the deal, they instituted this lawsuit and immediately moved for preliminary relief. A temporary restraining order was issued pending argument on a preliminary injunction, after which the Court denied the preliminary injunction and vacated the TRO.
The plaintiffs sought the preliminary injunction on the grounds that the board exceeded its authority by devoting a public area for uses which are anathema to the recreational uses that the roof was to be used for, and that a vote by the unit owners should have been resorted to for such a drastic change in use. They also contended that these installations were harmful to the health, life and safety of the residents and anyone else who were exposed to the allegedly dangerous radio omissions given off by the wireless facilities.
The Court denied the plaintiffs' claims, holding that there was no proof that the facilities were dangerous, and the interference with the use of the rooftop was minimal as only a relatively small portion of the roof was being utilized by T-Mobile. Moreover, this Court recognized that its action was pre-empted by federal law which established a procedure for the plaintiffs to petition the Federal Communications Commission to terminate the installation on health and safety grounds. Moreover, plaintiffs had failed to submit even a scintilla of scientific or medical evidence that the installation of these facilities was harmful. Finally, held the Court, the board acted within the powers granted to it by the bylaws which permitted it to curtail or relocate any portion of the common areas (which include the roof) "devoted to storage, recreation or service purposes . . .". Afterwards, T-Mobile and the condo board modified the lease — revised T-Mobile's plans and specifications to place its facilities much higher on the roof so as to diminish their proximity to unit holders as well as any interference with their recreational uses. While T-Mobile emphasized this change, plaintiffs failed to address this current situation in its written submissions or in its oral presentation, challenging instead the original construction plans. It did, however, amend its Complaint to add causes of action for conspiracy to commit a tort and a permanent injunction.
Plaintiffs' Contentions
Plaintiffs again contend that the board exceeded the authority given to it by the bylaws. As they did in their failed motion for a preliminary injunction, they argue that the board exceeded its authority for the following reasons:
1.the construction of T-Mobile's facilities will change the structure of the building in violation of § 5.6 (c) of the by-laws;
2.the structure of such facilities will interfere with the peaceful possession and use of the roof by the residents of the building, thereby violating § 5.3 of the by-laws;
3.the construction of the facilities is a threat to the health and safety of the building's residents, a violation of Article 7(b) of the Condominium Declaration.
The defendants challenge all four of these contentions.
Decision
Section 5.6 (c) of the by-laws provides:
Nothing shall be done in any unit or in, on, or to the common elements that will impair the structural integrity of the property or that will structurally change the building . . .
None of the cases cited in the plaintiffs' memorandum — Two Guys from Harrison v S.F.R. Realty Associates , 63 NY2d 396, 482 NYS2d 465; New School v Sutton Space , 188 AD2d 341, 391 NYS2d [1st Dept 1992]; Josan Associates v General Bowling Corp. , 135 AD2d 502, 521 NYS2d 74 [2d Dept 1987] — are controlling here. All of the additions to the structure are non-permanent and non-removable. T-Mobile's assertion that they will be removed at the termination of the lease is unchallenged. As in Frequency Electronics, Inc. v We're Assoc. Co. , 120 AD2d 489, 501 NYS2d 693 [2d Dept 1986], where the installations were non-permanent, removable and no evidence was produced that they cause serious injury to the building, they were not deemed structural changes.
In stating that § 5.6(a) of the bylaws was violated, the plaintiffs charge the board and the individual board members with interfering with the unit owners' peaceful possession or proper use of the premises. The section states:
No nuisance shall be allowed on the property, nor shall any use be allowed that is either a source of annoyance to the residents or interferes with the peaceful possession or proper use of the premises by its residents or occupants . . .
In my July 9, 2010 decision I emphasized the unenforceability of this provision because of its vagueness. What type of use interferes with an owner's use and enjoyment — a slight interference or one that bars complete or nearly complete activities on the roof. I remind the parties that restrictions on land use must be supported by clear and convincing evidence ( Perria v Bayville , 894 NYS2d 131, 133). However, whatever argument that the plaintiffs could make on this issue is now mooted with the passage of time. The plaintiffs continue their attack on the basis of the plans and the completed construction at the time that their motion for a preliminary conference was argued. Since then, the condominium board and T-Mobile have modified their lease and the plans to place the facilities at a much higher level on the roof so that they are no longer in relatively close proximity to the plaintiffs but are far removed from them. They no longer interfere with the view of the New York skyline, nor do they take up space formerly used for other recreational activities. Strangely, plaintiffs' arguments remain rooted in the past and do not address the changed contemporary situation.
Annexed as Exhibit D to the Notice of Motion
Plaintiffs allegation of the violation of Section 5.3 of the by-laws is incapable of surviving. Plaintiffs contend that this section of the by-laws requires that the failure of the unit owners to be accorded the opportunity to vote on this project nullifies the lease executed by the board and T-Mobile. Section 5.3 states in pertinent part:
. . . all necessary or desirable alterations, additions or improvements in or to any of the common elements shall be made by the condominium board, and the cost and expense thereof shall constitute a Common Expense. Notwithstanding, the foregoing, however, whenever the cost and expense of any such alterations, additions, or improvements would, in the judgment of the condominium board, exceed $100,000 in the aggregate in any calendar year, such proposed alterations, additions, or improvements shall not be made unless first approved by the unit owners [emphasis added].
Plaintiffs argue that because it is clear that T-Mobile's expenses will exceed $100,000, the provision requires that there be a vote of the unit owners. However, the key phrase in the by-laws is "common expense". It is only when the condo, and therefore, the owners, must shoulder such an expense that this provision applies. But it is not the condominium but T-Mobile who is shouldering this expense, meaning that no vote of the owners is necessary.
Plaintiffs' fourth claim to the effect that the structure is a threat to life, health and safety was extensively dealt with in the Court's July 9, 2010 decision denying the plaintiffs' request for a preliminary injunction. Nothing has changed since that decision. 47 UCC § 332 (c)(i)(b) (IV) continues to preempt this Court from interfering with the installation of the facilities ( See , Exhibit D of the moving affidavit and the authority cited therein).
The prong of plaintiffs' motion to amend the complaint to obtain a preliminary injunction on the ground that the condominium board exceeded the authority granted to it by the governing documents is denied. We have already established that the sections of the by- laws that have been put forth by plaintiffs do not support the claim that the board exceeded its authority in entering into the lease. Therefore, they have failed to establish any grounds for a permanent injunction ( Elow v Sveninpeen , 58 AD3d 674, 673 NYS2d 319 [2d Dept 2009]).
That portion of plaintiffs' complaint to amend the complaint to assert a conspiracy to commit a tort is also denied. New York does not recognize conspiracy to commit a tort as an independent civil cause of action ( Steier v Schreiber , 35 AD3d 519, 522, 810 NYS2d 431 [1st Dept 2006]; lv to app den 6 NY3d 714 (2006) (Table No. 1-14, 314).
Having decided that the actions taken by T-Mobile are not in violation of the governing documents and there being no issue about breach of fiduciary duty, the business judgment rule mandates that this Court not substitute its judgment for the board's ( Levandusky v One Fifth Ave. Apartment Corp. , 75 NY2d 530, 541, 536-53). The lease between the board and T-Mobile remains in effect. All of the claims against both defendants, having failed to survive this Court's examination, the complaint is dismissed against both T-Mobile and the Salem House Condominium Board.
The foregoing discussion establishes that there is no real issue of fact that needs to be decided at trial, and thus summary judgment is awarded to defendants dismissing this action ( Pirelli v Long Island R.R. , 226 AD2d 166, 641 NYS2d 240 [1st Dept 1996]).
Accordingly, it is
ORDERED and ADJUDGED that:
1.this action is dismissed as against each of the individual defendants;
2.the first, second, third, fourth, fifth and sixth causes of action in the complaint are severed and dismissed with separate costs and disbursements awarded to T-Mobile and the condominium board;
3.the lease agreement entered into between the board and T-Mobile is declared valid;
4.the remaining claims of the parties shall continue in this action.
Take Notice :
A Preliminary Conference is scheduled to take place in IAS part 2 at 71 Thomas Street, New York, NY, Room 205 at 2:00 p.m. on April 13, 2011.