Opinion
Index No. 9196/2015
10-07-2022
Hilmi Ulgar Aydin, Individual and derivatively on behalf of the Decora Condominium, Plaintiff, v. The Board of Managers of the Decora Condominium, and Alp Baysal, Individually, and as Board Member, Defendants.
Unpublished Opinion
Carl J. Landicino, J.
Upon the foregoing papers, Defendants The Board of Managers of the Decora Condominium (the "Board") and Alp Baysal ("Baysal"), as Board Member and Individually (collectively the "Defendants") move (Mot. Seq. #5), pursuant to CPLR 3212, for an order granting them summary judgment, dismissing the complaint and entering a judgment in their favor on their counterclaims against Plaintiff Hilmi Ulgar Aydin ("Aydin"), individually and derivatively on behalf of Decora Condominium. Mr. Aydin cross-moves (Mot. Seq. #6) for an order granting him summary judgment and dismissal of the counterclaims, or in the alternative, severing defendants' counterclaims.
Mr. Aydin commenced this action by the filing of a summons and complaint on July 23, 2015. Defendants appeared by service of a verified answer with counterclaims. Mr. Aydin amended his complaint, alleging that in January 2015, he was the owner of certain residential units in the Decora condominium building located at 165 North 10th Street, Brooklyn, New York (the Condo) and held a 23% interest in the common elements of the Condo. He further alleged that he also owned, among other property, a parking space in the garage at the Condo. Mr. Aydin asserts that the Board, under the direction of Mr. Baysal, needlessly relocated, installed and affixed heating units to the ceiling above and/or directly next to his parking space, in order to harass him. Mr. Aydin argues that this constituted a trespass and interference with the use of Aydin's parking space. Mr. Aydin asserts that thereafter, in February of 2015, at his sole expense, the heating unit purportedly encroaching on his parking spot was removed. Mr. Aydin contends that in July of 2015, Defendants placed the heating unit in the same location, again creating a trespass and interference with the use of Mr. Aydin's parking space.
Based upon the foregoing, Mr. Aydin seeks a declaratory judgment that any installation of a heating system in the same location be declared an encroachment, trespass, and/or a private nuisance and that such installation interferes with the use of his property. He also seeks a permanent injunction enjoining defendants from installing any future heating units in the same location and directing removal of the presently installed heating units. Mr. Aydin also asserts causes of action for trespass, private nuisance, breach of fiduciary duty, and an accounting.
Defendants served an amended answer with counterclaims, asserting multiple causes of action against Mr. Aydin. Defendants contend that the relocation of the heating units was necessary in order to prevent structural damage to the Condo. Additionally, Defendants assert that the heating units were installed and affixed to a portion of the garage's ceiling above an unoccupied common area. Defendants now seek a permanent injunction enjoining Mr. Aydin from tampering with, altering, moving, dismantling, damaging, disabling, or otherwise taking any action to remove or change the location of the heating units located in the garage. Defendants also seek a declaratory judgment that the installation of the heating units is proper and Mr. Aydin shall remove planters on the roof and provide all Condo tenants access to the roof. Defendants further assert a breach of contract cause of action, alleging that Mr. Aydin breached the Condo's By-Laws by manipulating and removing the heating system, as well as actions sounding in trespass, frivolous litigation, and breach of fiduciary duty.
Defendants argue that they are entitled to summary judgment, dismissing the complaint, awarding judgment on their counterclaims, and setting the matter down for a trial on damages, including attorney's fees. Supporting their position, defendants proffer, among other evidence, the affidavit of Mr. Baysal, the Condo's By-Laws and Declarations, and various documentary, including photographic, evidence. Defendants insist that this evidence demonstrates that the relocation of the garage heating units neither encroaches upon Mr. Aydin's property nor interferes with his enjoyment or use of his parking space. Mr. Baysal states that the heating units were previously located in another area of the garage for a number of years prior to being moved to their present location. Mr. Baysal contends that as a consequence of the heating units' previous location, condensation would accumulate causing structural damage to the Condo. He stated that after obtaining and reviewing bids, non-party contractor Highland HVAC, LLC (Highland) was selected to address the issue. Baysal argues that after unsuccessfully attempting to rectify the issue by sealing the heating units' exhaust pipes, Highland advised the Board to relocate the heating units to their present location, an unutilized area of the garage next to Mr. Aydin's parking spot. Mr. Baysal asserts that despite the heating units being placed wholly outside of his parking space area, after the initial relocation was completed, Mr. Aydin directed the dismantling and removal of one of the heating units based upon his mistaken belief that the heating units encroached on his parking spot and interfered with the use of his property. Thereafter, Highland purportedly re-installed the heating unit in the same location. Mr. Baysal contends that there has been no further damage to the Condo by the heating units.
Mr. Baysal asserts that the heating units were installed wholly and completely outside of the area of Mr. Aydin's parking space. In support of his sworn statement, Mr. Baysal proffers floor plans depicting Mr. Aydin's parking space, the placement of the heating units and exhaust pipes during prior years, and the present location of the heating units. Photographs depicting the relocation of the heating units' were also provided. Additionally, Mr. Baysal argues that Mr. Aydin's verified answer acknowledges that Mr. Aydin had the heating units removed. Mr. Baysal also contends that there is no evidence demonstrating that the purpose of relocating the heating units was to disrupt, harass, or otherwise harm Mr. Aydin. Mr. Baysal states that the evidence, including correspondence between all parties and the Condo's property manager, demonstrates that the decision to relocate the heating units was the product of open discussions to address correcting an existing issue. Further, Baysal argues that alternative methods to rectify the issue were attempted, but despite these efforts, the condensation and damage persisted, requiring the relocation. Defendants also proffer the Condo's By-Laws and Declarations, pointing to various sections which purportedly grant the Board authority to manage, repair, and maintain common elements and relocate any existing utility easements in any portion of the property. Accordingly, the Defendants insist that there was no breach of a fiduciary duty in the management and operation of the Condo or creation of a private nuisance, encroachment, or interference with or trespass upon Mr. Aydin's property. Further, Defendants emphasize that the decisions and responses of the Board are protected by the business judgment rule, as the relocation of the heating units to the unoccupied location was performed within its discretion, in good faith and in furtherance of a legitimate purpose.
Turning to Defendant's counterclaims, Defendants argue that the evidence presented demonstrates their prima facie entitlement to accelerated judgment on their causes of action seeking a permanent injunction and declaratory judgment against Mr. Aydin and on their actions for breach of the Condo's By-Laws, trespass, frivolous litigation, and breach of fiduciary duty. Defendants maintain that Mr. Aydin acknowledged that he dismantled and removed a heating unit by virtue of the allegations he asserted in his verified amended complaint. They highlight that Mr. Aydin represented therein that "[a]t [Mr. Aydin's] sole expense any encroachments to his spot were removed on or about February 2015" (NY St Cts Elec Filing [NYSCEF] Doc No. 8, Verified Amended Complaint, at ¶ 25). By his exercise of self-help, Defendants contend that Mr. Aydin's actions constituted a trespass and breach of the Condo's By-Laws. Defendants contend that because of this a permanent injunction against Mr. Aydin and a declaratory judgment determining that his tampering with the heating unit constituted a violation of the Condo's By-Laws is required. Additionally, Defendants insist that Mr. Aydin's action is frivolous, as demonstrated by his alleged conduct of engaging in self-help and the evidence conclusively establishing that the heating units are wholly within the confines of the common area, which area is owned and maintained by the Condo, and did not encroach on Mr. Aydin's private property.
Addressing their claims of breach of fiduciary duty, Defendants present that Mr. Aydin improperly utilized common space on the roof of the Condo for his own purposes, and prevented other tenants from enjoyment of what was intended to be common space. Additionally, Defendants assert that Mr. Aydin purposefully created an unfriendly atmosphere between the Board and himself, and damaged the heating unit. Defendants argue that inasmuch as Mr. Aydin was a partner in the Condo sponsor, when it was converted from rental units, and a former member of the Board, his conduct constitutes a breach of fiduciary duty, entitling Defendants to damages. Finally, Defendants argue that by virtue of Mr. Aydin's frivolous litigation and the Condo's By-Laws, they are entitled to attorney's fees. They assert that the Condo's By-Laws allow the collection of attorney's fees for enforcement actions relating to controlling Condo documents. As Defendants bring a counterclaim for breach of the Condo's By-Laws, they maintain that attorney's fees are recoverable.
In support of his motion for summary judgment and in opposition to Defendants' motion, Mr. Aydin proffers, among other evidence, the deed to his residential unit and his parking space, schematics of the same, photographs of the heating units and his motor vehicles, communication delivered by the Board concerning work to be performed, and papers relating to a New York City Department of Buildings stop work order. Mr. Aydin's fundamental argument is that Defendants maliciously and purposefully sought to encroach upon and interfere with the use of his parking space due to personal ill will harbored by Mr. Baysal and relating to Mr. Aydin. He maintains that there is no good faith basis for having relocated the heating units to their current location. He insists that the prior location of the heating units was approved by the New York City Department of Buildings and the Attorney General's Office and thus, there was no need to move them. He wholly rejects Defendants' contentions that the purpose of moving the heating units was to prevent and remediate damage caused to the Condo's physical structure. Additionally, Mr. Aydin maintains that, even if the heating units do not encumber or constitute a physical trespass upon his property, their relocation restricts the type of vehicle he is able to use. Mr. Aydin maintains that regardless of whether there is actual entry onto his property, the placement of the heating units next to his parking spot constitutes a trespass, encroachment, and private nuisance. Mr. Aydin also rejects Defendants' assertion that they are entitled to protections pursuant to the business judgment rule. He maintains that the application of the business judgment rule necessitates a showing that a decision was made in good faith and in furtherance of a legitimate objective of the Condo. He asserts that the relocation of the heating units was retaliatory in nature and meant to cause personal harm to him. Thus, he maintains that a permanent injunction should be entered against Defendants, directing the removal of the heating units and enjoining them from ever reinstalling heating units in their present location.
Mr. Aydin also argues that Defendants' counterclaims should be dismissed or severed from the instant action. Addressing his position that the counterclaims should be severed, he maintains the allegations and underlying facts are distinct and separate. Mr. Aydin insists that Defendants' counterclaims for a permanent injunction and a declaratory judgment must be dismissed as the relocation of the heating unit was unnecessary, performed in malice with the aim to unsettle him, and constitutes a trespass and private nuisance. Mr. Aydin therefore contends that Defendants' allegations and the relief they seek are not equitable and fail on the merits. Turning to Defendants' breach of the Condo's By-Laws claim, Aydin maintains that there is no contractual relationship between himself and the parties who dismantled and removed the heating unit nor is there a contract between himself and the Defendants concerning the heating unit. As such, he insists that there can be no breach of contract or By-Laws as there are no contracts or relevant provisions to be breached. Addressing Defendants' assertions of trespass, Mr. Aydin argues that as owner of 23.14% of the common interest in the Condo and.57% common interest in the garage, he could not have committed a trespass, as the property is owned, in part, by him. Mr. Aydin also maintains that there is no contract provision or statute entitling Defendants to recover attorney's fees for prosecution of their action and that further, his complaint is not frivolous, as evidenced by the stop work order by the New York City Department of Buildings. He maintains that there is no basis to award sanctions in Defendants' favor, as there is an ample basis in law and fact supporting his claims against Defendants. Mr. Aydin argues that there is no evidence supporting Defendants' claims for breach of fiduciary duty. He also argues that the parties agree that he no longer serves on the Board and he does not perform any business on the Condo's behalf. He maintains that he cannot be deemed to be an agent of the Condo or the Board. He contends that he is a tenant, whose sole fiduciary duty is payment of his common charges, which he maintains is not in contention in the present action. Finally, Mr. Aydin rejects Defendants' assertions that he admitted to damaging the heating unit. He asserts that the burden rests on Defendants to demonstrate that he did so.
In reply, both parties present additional evidence and personal affidavits, supporting and reasserting their respective arguments. In furtherance of their position that the relocation of the heating unit is protected and appropriate conduct under the business judgment rule, Defendants proffer, among other evidence, surveys depicting damage to the garage as a consequence of the heating units prior location, email correspondence concerning ways to address the damage and relocation of the heating units, and documentation reflecting that the New York City Department of Buildings awarded a permit for the work to be performed and withdrew the stop work order. Defendants argue that this evidence rebuts Mr. Aydin's contentions that the counterclaims should be dismissed or severed and demonstrates that his claims are without merit. Defendants contend that there are no genuine questions of fact in this matter, and that the evidence clearly establishes that the heating units were relocated and installed to a portion of the garage ceiling outside the space owned and occupied by Mr. Aydin. Additionally, the Defendants assert that the Board undertook good faiths efforts to determine the best and most feasible operation to prevent continuing damage. Accordingly, Defendants again posit that a judgment in their favor and dismissal of Mr. Aydin's action is in order.
In further support of his position, Mr. Aydin presents, among other evidence, additional photographs depicting the parking spot and heating units, along with certain email correspondence between the Condo's Board and the property manager concerning the efforts to be undertaken to rectify the damage to the garage. Mr. Aydin asserts that the evidence he presented in his initial moving papers, coupled with his submissions in reply, clearly establish that the heating units were unnecessarily and maliciously relocated to their current position in order to upset him. He highlights that in email correspondence alternative measures were discussed to address the ongoing damage to the garage. He also raises concerns of potential damage to his car as a consequence of it being in close proximity to the heating units. He contends that the proposed alternative measure should have been employed but was purposefully ignored so as to purposefully cause him hardship.
On a motion for summary judgment the court's function is issue finding, not issue determination (see Trio Asbestos Removal Corp. v Gabriel & Sciacca Certified Pub. Accountants, LLP, 164 A.D.3d 864, 865 [2d Dept 2018] [internal citations omitted]). "Summary judgment is a drastic remedy not to be used if there is any doubt that a triable issue of fact exists" (Cunningham v Gen. Elec. Credit Corp., 96 A.D.2d 502, 502 [2d Dept 1983]). "A party moving for summary judgment must demonstrate that 'the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment' in the moving party's favor" (Jacobsen v New York City Health & Hosps. Corp., 22 N.Y.3d 824, 833 [2014], quoting CPLR 3212 [b]). "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986] [internal citations omitted]). Once the movant sets forth a prima facie case, the burden of going forward shifts to the opponent of the motion to produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact (see Zuckerman v City of New York, 49 N.Y.2d 557, 557 [1980]). However, a party may not attempt to create a feigned issue of fact by presenting new alternative facts attempting to avoid the consequences for prior sworn admissions (see generally Ricci v Lo, 95 A.D.3d 859, 860 [2d Dept 2012]; Freiser v Stop & Shop Supermarket Co., LLC, 84 A.D.3d 1307, 1309 [2d Dept 2011]).
At present, all twelve causes of action constituting the instant litigation are before the court to be considered for this summary judgment application. As aforementioned, Mr. Aydin's complaint alleges six causes of action for: 1) declaratory judgment, seeking a declaration that the installation of the heating units is deemed an encroachment, trespass, and/or private nuisance and such installation interferes with his use of the parking space; 2) a permanent injunction, directing Defendants to remove the heating units and enjoining Defendants from installing the heating units above Mr. Aydin's parking space; 3) trespass, based upon the encumbering of his property as a consequence of the Defendants having installed the heating units; 4) private nuisance, based upon the heating units adverse effects on Plaintiff's right to use and enjoy his parking space; 5) breach of fiduciary duty, based upon, inter alia, Defendants unnecessary relocation of the heating units; and 6) an accounting, seeking all records relating to the relocation of the heating units. Defendants' counterclaims are for: 1) a permanent injunction, enjoining Mr. Aydin from tampering with or altering, moving, removing, dismantling, damaging, disabling or otherwise taking any action to remove or change the location of the heating units; 2) breach of the Condo's By-Laws, based upon Plaintiff's unauthorized removal of the heating unit in February of 2015; 3) declaratory judgment, determining, among other relief, that Defendants' installation of the heating units was proper and prohibiting Mr. Aydin from dismantling, removing and tampering with the heating units; 4) trespass, based upon Mr. Aydin having dismantled the heating unit on the Board's property; 5) frivolous litigation, asserting Mr. Aydin's action is without merit; and 6) breach of fiduciary duty, based upon Plaintiff's exclusionary use of the rooftop and his commencement of the instant lawsuit.
Declaratory Relief
The principles of equity govern claims seeking declaratory relief (see Krieger v Krieger, 25 N.Y.2d 364, 370 [1969], citing Guibord v Guibord, 2 A.D.2d 34 [1st Dept 1956]; see also Mfrs. and Traders Tr. Co. v Niagara Falls Mall, Inc., 124 A.D.3d 1253, 1255 [4th Dept 2015]). "Once equity is invoked, the court's power is as broad as equity and justice require" (Rajic v Faust, 165 A.D.3d 716, 718 [2d Dept 2018]). "'The declaratory judgment procedure is intended to deal with actual problems and not with remote possibilities which may never eventuate'" (Fairhaven Properties, Inc. v Garden City Plaza, Inc., 119 A.D.2d 796, 796 [2d Dept 1986], quoting Guibord, 2 A.D.3d at 36). "By its nature equitable relief must always depend on the facts of the particular case and not on hypotheticals" (J. N. A. Realty Corp. v Cross Bay Chelsea, Inc., 42 N.Y.2d 392, 400 [1977]). Where parties chart a course for summary judgment in addressing declaratory causes of action, and the circumstances present that there are no genuine issues of fact and the dispute only involves issues of law, it is appropriate for the Supreme Court to reach the merits of the declaratory relief (see Matter of Weaver v Town of N. Castle, 153 A.D.3d 531, 533 [2d Dept 2017], citing O'Hara v Del Bello, 47 N.Y.2d 363 [1979]; Prudenti v County of Suffolk, 142 A.D.3d 1150 [2d Dept 2016]; Matter of Natural Resources Defense Council, Inc. v New York State Dept. of Envtl. Conservation, 120 A.D.3d 1235 [2d Dept 2014], affd 25 N.Y.3d 373 [2015]; Hendrickson v Philbor Motors, Inc., 102 A.D.3d 251 [2d Dept 2012]).
Injunctive Relief
Similar to declaratory judgment, injunctive relief is also an equitable remedy (see Ingenuit, Ltd. v Harriff, 56 A.D.3d 428, 429 [2d Dept 2008]; Picciano v Nassau County Civ. Serv. Com'n., 290 A.D.2d 164, 169 [2d Dept 2001]). A permanent injunction is a drastic remedy which may be granted only where a party demonstrates that it will suffer irreparable harm absent the injunction (see Merkos L'Inyonei Chinuch, Inc. v Sharf, 59 A.D.3d 403, 408 [2d Dept 2009]). "Injunctive relief is to be invoked only to give protection for the future... to prevent repeated violations, threatened or probable, of the [parties'] property rights" (Swartz v Swartz, 145 A.D.3d 818, 828-29 [2d Dept 2016] [internal quotation marks and citations omitted]). To demonstrate entitlement to the entry of a permanent injunction in a party's favor, that party must prove that there is a "violation of a right presently occurring, or threatened and imminent, that he or she has no adequate remedy at law, that serious and irreparable harm will result absent the injunction, and that the equities are balanced in his or her favor" (Caruso v Bumgarner, 120 A.D.3d 1174, 1175 [2d Dept 2014] [internal quotation marks and citations omitted]).
Trespass
"A trespass claim represents an injury to the right of possession, and the elements of a trespass cause of action are an intentional entry onto the land of another without permission" (C & B Enterprises USA, LLC v Koegel, 136 A.D.3d 957, 959 [2d Dept 2016]). "Entering upon the land of another without permission, even if innocently or by mistake, constitutes trespass.... The essence of trespass is the invasion of a person's interest in the exclusive possession of land" (Rosen v Schonbrun, 172 A.D.3d 771, 773 [2d Dept 2019]). Concerning trespass to chattel, "[t]o establish a trespass to chattels, the [claimant] must plead an intentional and physical interference with the use and enjoyment of personal property in the [claimant's] possession, without justification or consent" (Amos Fin., LLC v H & B & T Corp., 48 Misc.3d 1205 (A) [Sup Ct, Kings County 2015, Lewis, K.]; see also Sporn v MCA Records, Inc., 58 N.Y.2d 482, 487 [1983]; Level 3 Communications, LLC v Petrillo Contr., Inc., 73 A.D.3d 865, 868 [2d Dept 2010]).
Private Nuisance
"The elements of a private nuisance cause of action are: (1) an interference substantial in nature with a person's property right to use and enjoy land, (2) that is intentional in origin and unreasonable in character, and (3) caused by another's conduct in acting or failure to act" (Sullivan v Keyspan Corp., 155 A.D.3d 804, 807 [2d Dept 2017]). "Except for the issue of whether the plaintiff has the requisite property interest, each of the other elements is a question for the jury, unless the evidence is undisputed" (Gedney Commons Homeowners Ass'n, Inc. v Davis, 85 A.D.3d 854, 855 [2d Dept 2011] [internal quotation marks and citations omitted] [emphasis added]). "What constitutes a reasonable use of one's property depends on the circumstances of each case" (Benjamin v Nelstad Materials Corp., 214 A.D.2d 632, 633 [2d Dept 1995]). Further, "[t]hings merely disagreeable, however, which simply displease the eye no matter how irritating or unpleasant, are not nuisances (Ruscito v Swaine, Inc., 17 A.D.3d 560, 561 [2d Dept 2005]). Additionally, only known or substantially certain injuries may be recoverable under private nuisance claims, allegations of dangers that are theoretical or speculative are insufficient as a matter of law (see McCarty v Nat. Carbonic Gas Co., 189 NY 40, 49 [1907] ["If the use is reasonable there can be no private nuisance, but if the use is unreasonable and results in substantial injury, an actionable nuisance exists. Trifling results are disregarded, for the courts proceed with great caution and will not interfere with the use of property by the owner thereof unless such use is unreasonable, the injury material and actual, not fanciful or sentimental"]; Balunas v Town of Owego, 56 A.D.3d 1097, 1098 [3rd Dept 2008], citing Christenson v Gutman, 249 A.D.2d 805, 808 [3rd Dept 1998]; Copart Indus., Inc. v Consol. Edison Co. of New York, Inc., 41 N.Y.2d 564, 571 [1977]; see also Cangemi v Yeager, 185 A.D.3d 1397, 1399 [4th Dept 2020]).
Breach of Fiduciary Duty
"To establish a prima facie case for breach of fiduciary duty, a plaintiff must allege (1) the existence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damages directly caused by the defendant's misconduct" (Vil. of Kiryas Joel v County of Orange, 144 A.D.3d 895, 898 [2d Dept 2016] [internal quotation marks and citations omitted]). A condominium board "is by definition in a fiduciary relationship with the unit owners, because a fiduciary is one who transacts business, or who handles money or property, which is not his own or for his own benefit, but for the benefit of another person, as to whom he stands in a relation implying and necessitating great confidence and trust on the one part and a high degree of good faith on the other part" (Bd. of Managers of Fairways at N. Hills Condominium v Fairway at N. Hills, 193 A.D.2d 322, 325 [2d Dept 1993] [internal quotation marks and citations omitted]). However, "[t]here is no fiduciary relationship between the sponsor and the condominium" (Caprer v Nussbaum, 36 A.D.3d 176, 191 [2d Dept 2006]). A condominium board may rebut allegations that it breached its fiduciary duty and demonstrate its entitlement to dismissal of the cause of action by establishing that it acted in good faith, within its authority, and for the benefit of the condominium (see Skouras v Victoria Hall Condominium, 73 A.D.3d 902, 903 [2d Dept 2010], quoting Schoninger v Yardarm Beach Homeowners' Assn., 134 A.D.2d 1, 10 [2d Dept 1987]; Levine v Greene, 57 A.D.3d 627, 628 [2d Dept 2008]).
Claim for an Accounting
Accounting claims are related to fiduciary duties (Pacella v RSA Consultants, Inc., 164 A.D.3d 806, 808 [2d Dept 2018]). "[C]laims for an accounting accrue when there is either an open repudiation of the fiduciary's obligation or a judicial settlement of the fiduciary's account" (Inc. Vil. of Muttontown v Ryba, 121 A.D.3d 757, 759 [2d Dept 2014] [internal citations omitted]). "An accounting is an equitable remedy... which a party may seek only where he or she can establish the existence of a confidential or fiduciary relationship and a breach of the duty imposed by that relationship respecting property in which the party seeking the accounting has an interest" (LMEG Wireless, LLC v Farro, 190 A.D.3d 716, 720 [2d Dept 2021] [internal quotation marks and citations omitted]). "The fiduciary must demonstrate complete repudiation of its duties as a fiduciary" (Inc. Vil. of Muttontown, 121 A.D.3d at 759 [internal citation omitted]). "[A] plaintiff must show that there was some wrongdoing on the part of a defendant with respect to the fiduciary relationship" (Benedict v Whitman Breed Abbott & Morgan, 110 A.D.3d 935, 938 [2d Dept 2013] [internal citation omitted]).
Violation of Board By-Laws
"A violation of bylaws is akin to a breach of contract" (Pascual v Rustic Woods Homeowners Ass'n, Inc., 134 A.D.3d 1003, 1005 [2d Dept 2015], citing Pomerance v McGrath, 124 A.D.3d 481, 482 [1st Dept 2015]; Stony Brook Shores Prop. Owners Ass'n, Inc. v Liscia, 169 A.D.2d 712, 713 [2d Dept 1991]). Accordingly, to be entitled to recovery for breach of condominium by-laws, a claimant must demonstrate "(1) the existence of a contract, (2) the plaintiff's performance pursuant to the contract, (3) the defendant's breach of its contractual obligations, and (4) damages resulting from the breach" (Kollatz v KOS Bldg. Group, LLC, 188 A.D.3d 1175, 1177 [2d Dept 2020] [internal quotation marks and citations omitted]). "'[T]he same conduct which constitutes a breach of a contractual obligation may also constitute the breach of a duty arising out of the contract relationship which is independent of the contract itself'" (Hamlet at Willow Cr. Dev. Co., LLC v Northeast Land Dev. Corp., 64 A.D.3d 85, 112-113 [2d Dept 2009], quoting Dime Sav. Bank of New York, FSB v Skrelja, 227 A.D.2d 372, 372 [2d Dept 1996]). "Where it does, a contracting party may be charged with a separate tort liability arising from a breach of a duty distinct from, or in addition to, the breach of contract" (Hamlet at Willow Cr. Dev. Co., LLC, 64 A.D.3d at 113 [internal quotation marks and citations omitted]). However, while certain conduct may subject the actor to both tort and contract liability, the Appellate Division has often found that a cause of action for trespass and a breach of contract claim are duplicative, when such causes of action are based upon identical allegations, favoring the preservation of the breach of contract action and dismissing the trespass action (see Magliocco v MKB Family, LLC, 199 A.D.3d 576 [1st Dept 2021]; Harmit Realties LLC v 835 Ave. of Americas, L.P., 128 A.D.3d 460, 461 [1st Dept 2015]; Eden Roc, LLLP v Marriott Intern., Inc., 116 A.D.3d 486, 487 [1st Dept 2014]; see also Novelty Crystal Corp. v PSA Institutional Partners, L.P., 49 A.D.3d 113, 119 [2d Dept 2008] ["... the trespass cause of action is thus nothing more than a contract claim in tort clothing..."]).
Claims for Attorney's Fees
"Under the general rule, attorney's fees are incidents of litigation and a prevailing party may not collect them from the loser" (LG Funding, LLC v Johnson and Son Locksmith, Inc., 170 A.D.3d 1153, 1154 [2d Dept 2019] [internal quotation marks and citations omitted]). Attorney's fees are only recoverable when "authorized by statute, agreement, or court rule" (see Ins. Co. of Greater New York v Clermont Armory, LLC, 84 A.D.3d 1168, 1171 [2d Dept 2011]). "New York public policy disfavors any award of attorneys' fees to the prevailing party in a litigation" (Pickett v 992 Gates Ave. Corp., 114 A.D.3d 740, 741 [2d Dept 2014] [internal quotation marks and citations omitted). Consequently, "a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed" (LG Funding, LLC, 170 A.D.3d at 1154 [internal quotation marks and citations omitted]). 22 NYCRR 130-1.1 allows a party to recover costs, including attorney's fees, when it is determined that its adversary engaged in frivolous conduct. "Among the types of conduct which will be considered frivolous are those determined to be completely without merit in law or undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another" (Finkelman v SBRE, LLC, 71 A.D.3d 1081, 1081-82 [2d Dept 2010] [internal quotation marks and citations omitted]).
Here, there are no genuine issues of material fact concerning the dispute between the parties. At its core, this matter relates to whether the Defendants' placement of the heating units invades and violates Mr. Aydin's property rights; secondarily, whether Mr. Aydin's removal of a heating unit constituted actionable conduct. The evidence demonstrates Defendants' entitlement to dismissal of Mr. Aydin's action in its entirety and awarding summary judgment in their favor on their first (permanent injunction) and second (breach of the Condo's By-Laws) counterclaims. Mr. Aydin established his entitlement to summary judgment dismissing Defendants' fifth (frivolous litigation) and sixth (breach of fiduciary duty) claims. Defendants' third counterclaim, seeking a declaratory judgment, is granted in part and denied in part. That portion of the declaratory relief seeking a declaration that the Board's installation of the heaters was proper is awarded. The remaining portion of the sought declaratory relief is denied. Similarly, Defendants' fourth cause of action (trespass) is dismissed as duplicative of its second (breach of the Condo's By-laws) cause of action.
The evidence presented by all parties, demonstrates that the installation of the heating units does not encumber, invade, or trespass onto property owned and possessed by Mr. Aydin. The diagrams, sworn statements, and photographs, presented by both Mr. Aydin and the Defendants, establish that the heating units were installed in a location wholly outside the boundaries of Mr. Aydin's parking space. Further, the allegations that the heating units constitute a nuisance is unsupported by fact or law. As noted, an interference with a property right must be substantial in nature and not be theoretical or speculative. Mr. Aydin's concerns that the heating units will expose his car to intense heat is unsupported by the record and his argument is speculative. Further, his contention that the location of the heating units interferes with the use of his parking space is likewise unsupported by the record, as the photographs presented by Mr. Aydin depict his ability to use his space completely and without significant limitations. The allegations that the heating units located outside his parking space somehow impede his enjoyment of use of his parking space fail to rise to the level of a substantial interference (see generally Mangusi v Town of Mount Pleasant, 19 A.D.3d 656, 657 [2d Dept 2005] [wherein the court affirmed summary judgment in town-defendant's favor, finding that where the town-defendant maintained a 15-foot drainage easement on plaintiff's property for a brook (waterway), and the brook did not exceed the boundary of the 15-foot drainage easement, overflows of the brook did not constitute substantial interference]; Brown v Blennerhasset Corp., 113 A.D.3d 454, 454 [1st Dept 2014] [as a matter of law the alleged interference was not substantial or unreasonable because it was premised upon noises that are incidental to normal occupancy]; Pilatich v Town of New Baltimore, 170 A.D.3d 1463, 1464 [3d Dept 2019] [wherein the Appellate Division affirmed the trial court's verdict in a nonjury trial, finding that the installation of a stone wall and metal pipe on defendant's property to prevent large vehicles from using his driveway did not constitute a substantial or unreasonable interference with neighboring property owner plaintiff's use and enjoyment of his land]; Lewis v Stiles, 158 A.D.2d 589, 590 [2d Dept 1990] ["disturbances of dogs barking, children frolicking, and the discordant sounds of music and outdoor summer life do not, as a matter of law, rise to the level of substantial and unreasonable interference with the plaintiffs' use of their own property which would constitute a private nuisance"]). Here, examining the long history of private nuisance jurisprudence in New York State, it is clear that the evidence demonstrates that Mr. Aydin's grievances are legally inconsequential and therefore fail to establish a private nuisance. Bolstering this determination are the photographs submitted by Mr. Aydin, which depict his complete use of his parking space unencumbered and without interference by the heating units. To the extent Mr. Aydin attests and depicts that his vertically opening vehicle doors come into contact with the heating unit when its fully extended, which is not clear, such contact appears readily avoidable and cannot be deemed a substantial interference by any reasonable interpretation of the law.
Turning to Mr. Aydin's claims concerning breach of fiduciary duty, the evidence establishes that Defendants acted in good faith, within their authority, and for the benefit of the Condo. Defendants proffer the Condo's By-Laws and Declaration, which provide in relevant part, that the Board has the power and duty to maintain, repair, and replace the general common elements of the Condo (see NYSCEF Doc No. 11, aff of Mr. Baysal, dated August 3, 2020, exhibit G, at 36-37 & 44 ["The Property and business of the [Condo] shall be managed by its Board of Managers, which may exercise all such powers... [t]hese powers shall... include... [t]o make repairs, restore or alter... the common elements after damage... [t]o make additions, alterations, or improvements to the common elements of the [Condo]... [a]ll maintenance, repairs and replacement... to the General Common Elements (as defined in the Declaration)... shall be made by the [Board]"]). The Condo's Declaration defines general common elements as, among other items, "[a]ll central and appurtenant installations for services such as power, light, air conditioning (if any), intercom, telephone, television, gas, hot and cold water, heat (including all pipes, ducts, wires, shoots, cables, and conduits used in connection therewith) and all other mechanical equipment spaces" (id. at 11). Defendants further proffer correspondence, photographs, and sworn statements attesting that as a consequence of the pre-existing heating arrangement in the garage, there was material damage to the subject building. Mr. Baysal averred that the Board initially determined that the best approach to address the issue was to insulate certain pipes to prevent damage to the ceiling; however, such alterations apparently proved to be insufficient (NYSCEF Doc No. 4, aff of Mr. Baysal, dated August 3, 2020 at 5, para 16). Mr. Baysal attested that after consultation with contractors and the Condo's property manager, it was determined that the best course of action to prevent further damage to the Condo was to relocate the heating units to an unused common area of the garage (see id. at 5-6, paras 17-19; NYSCEF Doc No. 18, aff of Mr. Baysal, dated August 3, 2020, exhibit N; NYSCEF Doc No. 50, aff of Mr. Baysal, dated August 27, 2020 at 2-3, paras 6-10; NYSCEF Doc No. 52, aff of Mr. Baysal, dated August 27, 2020, exhibit W; NYSCEF Doc No. 52, aff of Mr. Baysal, dated August 27, 2020, exhibit X).
"In reviewing a condominium board's actions, courts should apply the business judgment rule" (Board of Mgrs. of Fishkill Woods Condominium v Gottlieb, 184 A.D.3d 785, 789, 126 N.Y.S.3d 749). "Under the business judgment rule, the court's inquiry is limited to whether the board acted within the scope of its authority under the bylaws (a necessary threshold inquiry) and whether the action was taken in good faith to further a legitimate interest of the condominium. Absent a showing of fraud, self-dealing or unconscionability, the court's inquiry is so limited and it will not inquire as to the wisdom or soundness of the business decision" (id. at 789 [internal quotation marks omitted]; see Board of Mgrs. of Vil. Mall at Hillcrest Condominium v Banerjee, 188 A.D.3d 777, 779, 136 N.Y.S.3d 353). Katz v Bd. of Mgrs. of Stirling Cove Condominium Assn., 201 A.D.3d 634, 635-636 [2d Dept 2022]; see Pascual v. Rustic Woods Homeowners Assn., Inc., 134 A.D.3d 1003 [2d Dept 2015]; see also Acevedo v. Town 'N Country Condominium, Section I, Bd. of Mgrs., 51 A.D.3d 603 [2d Dept 2008].
Accordingly, Defendants have demonstrated that their conduct was in good faith, within their authority and discretion, and for the benefit of the condominium. Mr. Aydin fails to rebut this showing and provides no evidence that the relocation of the heating units was performed in bad faith, outside the Defendants' authority, or was not for the betterment of the Condo. As Defendants demonstrated there was no breach of fiduciary duty, Mr. Aydin's accounting claims necessarily fail (see LMEG Wireless, LLC, 190 A.D.3d at 720).
Finally, by virtue of demonstrating that the installation of the heating units does not constitute a trespass, nuisance, or interference with Mr. Aydin's parking space and property rights, Defendants established their entitlement to summary judgment dismissing the declaratory and injunctive relief sought by Mr. Aydin. A declaratory judgment is intended to "deal with actual problems" (Fairhaven Properties, Inc., 119 A.D.2d at 796 [internal quotation marks and citations omitted]), while injunctive relief may only be awarded where the party demonstrates they will "suffer irreparable harm" (Merkos L'Inyonei Chinuch, Inc., 59 A.D.3d at 408). Here, the declaratory and injunctive relief sought are directly linked to Mr. Aydin's contentions that the heating units constitute an invasion of his property rights and a nuisance. The proffered evidence established that the causes of action for declaratory and injunctive relief must likewise be dismissed.
Addressing Defendants' counterclaims, the Court is of the opinion that the evidence establishes that in February of 2015, Mr. Aydin caused the subsequent removal of the heating unit. Defendants proffer an email from Mr. Aydin, dated February 10, 2015, delivered to the Condo's Property Manager, informing her that if the heating unit was "not removed within 48 hours [he] will have it removed" (NYSCEF Doc No. 21, aff of Mr. Baysal, dated August 3, 2020, exhibit Q at 2). Additionally, Mr. Aydin, in his verified complaint, acknowledged that "[a]t Plaintiff's sole expense any encroachments to his spot were removed on or about February 2015" (NYSCEF Doc No. 8, Verified Amended Complaint, at ¶ 25). Mr. Aydin sought to rebuke this admission, he attested that "I never laid a finger on any heating unit in the garage" and that he did "not recognize any individuals in the purported pictures" (NYSCEF Doc No. 30, aff of Mr. Aydin, dated June 23, 2021, paras 16 & 18). Such attestations do not serve to contradict his initial admission in the verified complaint. In the Court's opinion, to the extent Mr. Aydin seeks to present new alternative facts now, such attempts merely create a feigned issue of fact, seeking to avoid the consequence of his prior sworn admission (see generally Ricci, 95 A.D.3d at 86; Freiser v, 84 A.D.3d at 1309).
Mr. Aydin, as a unit owner of the Condo, is party and subject to the Condo's By-Laws and Rules and Regulations (see NYSCEF Doc No. 30, aff of Mr. Aydin, dated June 23, 2021, exhibit A at 4 [the unit owner is subject to "the benefits, rights, privileges, easements and subject other burdens, covenants, restrictions, by-laws, rules and regulations and easements all set forth in the Condominium Documents"]). Pursuant to the Condo's Rules and Regulations, "[n]o Unit Owner shall interfere in any manner with any portion of the heating or lighting apparatus which are part of the common elements and not part of the Unit Owner's Unit" (NYSCEF Doc No. 11, aff of Mr. Baysal, dated August 3, 2020, exhibit G, at 62 [emphasis added]). As aforementioned, the heating units are defined as common elements of the Condo (see id. at 11). Accordingly, Mr. Aydin's causing the dismantling of the heating unit constitutes a breach of the Condo's By-Laws. As Defendants' trespass claim is predicated upon the identical facts, their trespass claim is accordingly dismissed as duplicative (see generally Novelty Crystal Corp, 49 A.D.3d at 119).
Defendants' counterclaim for a permanent injunction enjoining Mr. Aydin from tampering with or altering, moving, removing, dismantling, damaging, disabling, or otherwise taking any action to remove or change the location of the heating units is granted. Defendants demonstrated that Mr. Aydin had interfered with the heating units after they were relocated. The evidence presented by all parties, demonstrates that disagreement continues regarding the placement of the heating units. Further, continued and future tampering with the heating units may not only lead to monetary damage, but irreparable harm to the physical structure of the Condo and the property of the Condo's residents. Accordingly, Defendants' counterclaim for a permanent injunction is granted to the extent that Mr. Aydin is enjoined from tampering with or altering, moving, removing, dismantling, damaging, disabling or otherwise taking any action to remove or change the location of the heating units located in the garage of the building without Board approval (see generally CSC Acquisition-NY, Inc. v 404 County Rd. 39A, Inc., 96 A.D.3d 986, 988 [2d Dept 2012]; Huntingdon Life Scis., Inc. v Stop Huntingdon Animal Cruelty, 71 A.D.3d 734, 735 [2d Dept 2010]; Long Is. Gynecological Services, P.C. v Murphy, 298 A.D.2d 504, 505 [2d Dept 2002]). Defendants' declaratory relief, to the extent it seeks a declaration that the installation of the heating unit was within its discretion is granted; the remaining portions are denied.
Defendants' breach of fiduciary duty claim is dismissed. Defendants' breach of fiduciary duty claims is predicated upon Mr. Aydin's status as a partner of the Condo's sponsor and a former member of the Board. As aforementioned, "[t]here is no fiduciary relationship between the sponsor and the condominium" (Caprer, 36 A.D.3d at 191 ; see also Bd. of Managers of Bayard Views Condominium, LLC, 187 A.D.3d at 699). To the extent Defendants assert that the breach of fiduciary duty claim relates to his status as a prior Board member, such assertions are unavailing. The conduct alleged relating to refusal to remove planters, creating a hostile atmosphere between himself and the Board, and commencing the present litigation, are not related to any fiduciary obligations or responsibilities Mr. Aydin owed the Condo as a former Board member. Whether such conduct may constitute a breach of the Condo's By-Laws is not before the court. Accordingly, Defendants' counterclaim for breach of fiduciary duty is dismissed.
Regarding Defendants' claim that they are entitled to recover reasonable attorney's fees pursuant to the Condo's By-Laws and on the basis that Mr. Aydin's action is frivolous, such relief is denied and dismissed. As aforementioned, there is no common law right to attorney's fees and such fees may only be awarded pursuant to statute, court rule, or agreement (see Ins. Co. of Greater New York, 84 A.D.3d at 1171). Pursuant to the Condo's By-Laws:
"Section 2. Default in Payment of Common Charges and Assessments. If any Unit Owner defaults in paying to the Board of Managers the Common Charges or any other amounts determined by the Board of Managers to be due, including (but not limited to) Common Charges, late payment charges, fees and expenses of collection or enforcement of the Condominium Documents (including attorneys fees), interest or fines (individually and collectively, []Charges [] such Unit Owner shall be obligated to pay interest at the maximum legal rate on such Charges from the due date thereof, together with all expenses, including attorneys' fees, incurred by the Board of Managers in any proceeding brought to collect such unpaid Charges (which shall also be deemed Charges). Except as otherwise expressly set forth in these By-Laws, all Charges shall be payable within five (5) days after demand is made. The Board of Managers shall have the right and duty to attempt to recover such Charges, together with interest thereon, and the expenses of the proceeding, including attorneys' fees, in an action to recover the same brought against the Unit Owner, or by foreclosure of the lien on such Unit granted by Section 339-z of the Real Property Law of the State of New York and Article Twelfth of Declaration of Condominium, in the manner provided in Section 339-aa thereof. For purposes of this Section, all Charges shall be deemed Common Charges under Section 339-z" (NYSCEF Doc No. 11, aff of Mr. Baysal, dated August 3, 2020, exhibit G, at 62 [emphasis added]).
The Condo's By-Laws specifically detail the circumstances whereby the Defendants would be entitled to the recovery of attorney's fees. Those circumstances and procedures detailed in the Condo By-Laws have not been met. Principally, there was no showing that a demand for the payment of charges has been made to Mr. Aydin. Accordingly, Defendants' contentions, that they are entitled to attorney's fees pursuant to the Condo's By-Laws, is unavailing (see Pickett, 114 A.D.3d at 741 ["New York public policy disfavors any award of attorneys' fees to the prevailing party in a litigation"]; see also LG Funding, LLC, 170 A.D.3d at 1154 ["a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed"]).
As to Defendants' contention that the instant litigation constitutes frivolous conduct, the facts and circumstances do not support such a conclusion. Mr. Aydin's positions concerning the installation of the heating unit, though ultimately unsuccessful, are not completely without merit in the law nor are the allegations unsupportable by a reasonable argument. Further, there is no evidence demonstrating that the litigation was meant to harass or maliciously injure Defendants. The evidence demonstrates that Mr. Aydin contended that he was wronged by Defendants' conduct and brought an action concerning his grievances. Accordingly, there is no basis to award attorney's fees in favor of Defendants.
Conclusion
It is, accordingly, ORDERED that the Defendants are awarded summary judgment, dismissing Mr. Aydin's first, second, third, fourth, fifth, and sixth causes of action, and the complaint is dismissed, and it is further;
ORDERED that Mr. Aydin is awarded summary judgment, dismissing Defendants' fourth, fifth, and sixth counterclaims, and it is further;
ORDERED that the Defendants are awarded partial summary judgment on their third counterclaim, seeking a declaratory judgment, to the extent that it is adjudged and declared that the Board's installation of the heaters was within its discretion pursuant to the Business Judgment Rule, and it is further;
ORDERED that the Defendants are awarded partial summary judgment on their first counterclaim to the extent that Mr. Aydin is enjoined from tampering with or altering, moving, removing, dismantling, damaging, disabling or otherwise taking any action to remove or change the location of the heating units located in the garage of the Condo without the Board's approval or order of a court of competent jurisdiction, and it is further;
ORDERED that Defendants are awarded summary judgment on their second counterclaim for breach of contract (Condo's By-Laws), and the action shall continue on the issue of damages in relation to this counterclaim only.
To the extent not specifically addressed herein, the parties' remaining contentions have been considered and found to be either meritless and/or moot.
This constitutes the decision and order of the court.