Opinion
Index No. 650906/2022
10-14-2022
Samuel Bacharach and Yael Bacharach, Plaintiffs, v. Board of Managers of the Brooks-Van Horn Condominium, Alex Rubin, and Frida Fridman, Defendants.
Bergstein Flynn & Knowlton PLLC, New York, NY (Lee Bergstein and David Friedman of counsel), for plaintiffs. Boyd Richards Parker & Colonnelli, P.L, New York, NY (Bryan J. Mazzola of counsel), for defendant Board of Managers of the Brooks-Van Horn Condominium. The Law Firm of Robert Moore, PLLC, New York, NY (Robert Moore of counsel), for defendants Alex Rubin and Frida Fridman.
Unpublished Opinion
Bergstein Flynn & Knowlton PLLC, New York, NY (Lee Bergstein and David Friedman of counsel), for plaintiffs.
Boyd Richards Parker & Colonnelli, P.L, New York, NY (Bryan J. Mazzola of counsel), for defendant Board of Managers of the Brooks-Van Horn Condominium.
The Law Firm of Robert Moore, PLLC, New York, NY (Robert Moore of counsel), for defendants Alex Rubin and Frida Fridman.
Gerald Lebovits, J.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 8, 9, 10, 11, 12, 13, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 51, 53, 54, 55, 56, 57 were read on this motion to DISMISS.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 44, 45, 46, 47, 48, 49, 50, 52 were read on this motion to DISMISS.
This action arises out of a dispute between neighboring residents in a condominium apartment building managed by defendant Board of Managers of the Brooks-Van Horn Condominium (Board). Plaintiffs Samuel and Yael Bacharach live in the condominium unit below defendants Alex Rubin and Frida Fridman (individual defendants).
Plaintiffs allege that the individual defendants have created in their apartment noise that rises to the level of a nuisance. According to plaintiffs, these defendants replaced their floor without the required Board approval; that this new flooring contains insufficient soundproofing; and that as a result, plaintiffs are subjected to substantial and unreasonable noise from the upstairs apartment. Plaintiffs further allege that the Board has breached its contractual obligation under the governing condominium documents to enforce the building's house rules with respect to the excessive noise coming from the upstairs apartment.
In motion sequence 001, the individual defendants move under CPLR 3211 (a) (7) to dismiss plaintiffs' claims against them for private nuisance and injunctive relief. Plaintiffs cross-move for leave to amend under CPLR 3025 (b) to add a claim under Real Property Law (RPL) § 339-j. That claim seeks what plaintiffs style as a "declaration" that "direct[s] Defendants Fridman and Rubin... to seek retroactive Board approval"-and, should approval be denied, to cure that flooring work "to ensure compliance with all Condominium requirements and all applicable governmental regulations."
In motion sequence 002, the Board moves under CPLR 3211 (a) (1) and (a) (7) to dismiss plaintiffs' breach-of-contract claim against it.
Motion sequences 001 and 002 are consolidated for disposition. The individual defendants' motion to dismiss is granted. Plaintiffs' cross-motion for leave to amend their claims against the individual defendants is granted. The Board's motion to dismiss is denied.
DISCUSSION
I. The Individual Defendants' Motion to Dismiss (Mot Seq 001)
The individual defendants move under CPLR 3211 (a) (7) to dismiss the claims against them-plaintiffs' second and third causes of action. In deciding an (a) (7) motion to dismiss, the court must determine "whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law." (African Diaspora Mar. Corp. v Golden Gate Yacht Club, 109 A.D.3d 204, 211 [1st Dept 2013] [internal quotation and citation omitted].) In this analysis, the complaint is liberally construed, all facts alleged in the complaint are accepted as true, and the plaintiff is given the benefit of every possible favorable inference. (Leon v Martinez, 84 N.Y.2d 83, 87 [1994].)
A. The Branch of the Motion Seeking Dismissal of Plaintiffs' Private-Nuisance Claim
The motion to dismiss the second cause of action, for private nuisance, is granted. A party alleging a private nuisance must establish: "(1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person's property right to use and enjoy land, (5) caused by another's conduct in acting or failure to act." (Copart Indus. v Consolidated Edison Co. of NY, 41 N.Y.2d 564, 570 [1977].) Plaintiffs' allegations do not establish a substantial and unreasonable interference with their right to enjoy their property.
The alleged conduct on which plaintiffs' nuisance claim is based-excessive noise caused by the "persistent[ ] running, jumping and playing" of defendants' children (NYSCEF No. 10 at ¶ 36)-does not rise to the level of substantial and unreasonable interference with plaintiffs' enjoyment of their apartment because it is "incidental to normal occupancy" in an apartment building. (Brown v Blennerhasset Corp., 113 A.D.3d 454, 454 [1st Dept 2014]; see also Hirschhorn v Board of Mgrs. of 169 Hudson St. Condominium, 2019 NY Slip Op 30202[U], at *3 [Sup Ct, NY County Jan. 21, 2019] [holding that the "allegation of noises" in one apartment from "steps and... children running" in a neighboring apartment "does not support a cause of action alleging a private nuisance"].)
Plaintiffs rely on Dubin v Glasser, in which the motion court denied defendant's motion to dismiss a private-nuisance claim that was based on alleged loud noises caused by a lack of carpeting on hardwood floors. (See 2021 NY Slip Op 30449[U], at *2 [Sup Ct, NY County Feb. 17, 2021].) But the court in Dubin did not separately consider the sufficiency of the allegations supporting the private-nuisance claim. (See id.) Additionally, plaintiff in Dubin alleged that "defendant causes loud noises at all hours of the day and night," with the "worst time [being]... from 11:00 pm to 8:00 am." (Id. at *1.) Plaintiffs here do not allege similar nocturnal noises. Further, here there is evidence suggesting that defendants ultimately complied with the carpeting regulations by the time of the action. (See NYSCEF No. 30 at 5; NYSCEF No. 28.) In contrast, the defendant in Dubin asserted that he was not subject to the condo bylaws' carpeting requirement. (See 2021 NY Slip Op 30449[U], at *2.)
The motion-court decisions in Kahona Beach LLC v Santa Ana Restaurant Corp. (2012 NY Slip Op 30211[U] [Sup Ct, NY County Jan. 24, 2012]) and George v Board of Directors of One W. 64th St., Inc. (2011 NY Slip Op 32325[U] [Sup Ct, NY County Aug. 19, 2011]), relied on by plaintiffs, are not to the contrary. The allegations in those cases concerned loud music played late at night (Kahona Beach) and loud, amplified music accompanying group dance and exercise routines (George), neither of which can fairly be considered incidental to normal apartment occupancy. (See Kahona Beach LLC v Santa Ana Rest. Corp., 2020 NY Slip Op 51787[U], at *2-3 [Sup Ct, NY County Aug. 26, 2010] [describing allegations and evidence supporting plaintiff's claims]; George, 2011 NY Slip Op 32325[U], at *1, *7-8 [same].)
Plaintiffs' private-nuisance claim is dismissed as against the individual defendants for failure to state a cause of action.
This court therefore does not reach the individual defendants' alternative statute-of-limitations argument with respect to plaintiffs' nuisance claim.
B. The Branch of the Motion Seeking Dismissal of Plaintiffs' Injunctive-Relief Claim
The individual defendants' motion to dismiss plaintiffs' third cause of action against them, for injunctive relief, is granted. "The standard of proof for a permanent injunction is the same as that for a preliminary injunction except that the movant must prevail on the cause of action that has led it to seek equity damages." (Metro Sixteen Hotel, LLC v Davis, 2016 NY Slip Op 32235[U], at *4-5 [Sup Ct, NY County 2016].) To obtain an injunction, the movant must clearly demonstrate: "(1) a likelihood of ultimate success on the merits, (2) irreparable injury absent granting of the preliminary injunction, and (3) a balancing of the equities in the movant's favor." (See St. Paul Fire & Mar. Ins. Co. v York Claims Serv., 308 A.D.2d 347, 348 [1st Dept 2003].) Here, given this court's dismissal of the private-nuisance claim against the individual defendants, plaintiffs cannot prevail on the merits.
II. Board Motion to Dismiss (Mot Seq 002)
The Board moves under CPLR 3211 (a) (1) and (a) (7) to dismiss the breach-of-contract claim against it-plaintiff's first cause of action.
A motion to dismiss under CPLR 3211 (a) (1) "may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law." (Goshen v Mutual Life Ins. Co. of NY, 98 N.Y.2d 314, 326 [2002] [internal citation omitted].) To plead a breach of contract claim, the plaintiff must establish: "(1) the parties entered into a valid agreement, (2) plaintiff performed, (3) defendant failed to perform, and (4) damages." (VisionChina Media Inc. v Shareholder Representative Servs., LLC, 109 A.D.3d 49, 58 [1st Dept 2013].) A condo board violating the condo bylaws is "akin to a breach of contract." (Pomerance v McGrath, 124 A.D.3d 481, 482 [1st Dept 2015].)
Plaintiffs have alleged that the Board violated the Condo Declaration, Bylaws, and Rules and Regulations by failing to redress defendants non-compliant flooring work and carpeting, which ultimately led to an unabated noise condition. (See NYSCEF No. 44 at 10-13.) The Board contends that it has sole discretion in determining whether and how enforce the house rules, and that its discretionary decisions are protected from judicial inquiry by the business-judgment rule. (See NYSCEF No. 30 at 5-14.) But the house rules are ambiguous as to whether the Board has the right or the duty to enforce them; and whether the Board has acted appropriately under the business-judgment rule presents factual issues that cannot be decided at this stage of the action. The Board's motion is denied.
A. The Board's Argument that it Enjoys Sole Discretion to Determine Whether and How to Enforce the Building's House Rules
In contending that it has sole enforcement discretion, the Board relies on three sections of the condo Bylaws. Section 2.6 of the Bylaws provides that the Board may take any act within its power that is "deemed necessary or desirable" to perform. (NYSCEF No. 47 at 5.) Bylaws § 9.2 (a) gives the Board the right "to enjoin, abate, or remedy the continuance or repetition" of a unit owner's breach of the condo's governing documents "by appropriate proceedings brought either at law or in equity." (Id. at 40.) And § 9.3 provides that this remedy, like the others specified in Bylaws article 9 or "elsewhere in the condominium documents," may be "exercised at one time or at different times, concurrently or in any order, in the sole discretion of the Board of Managers." (Id.)
It is not self-evidently clear, though, that the remedial discretion conferred by § 9.3 permits the Board simply to refrain from seeking to enforce an asserted breach of the condo's governing documents. That is, under § 9.3 the Board need not employ any particular remedial measure upon receiving complaints about asserted violations of the building's house rules; but that discretion does not necessarily mean that the Board can simply disregard those complaints for multiple years should the Board decide that the complaints do not warrant even informal efforts at dispute resolution. This court's skepticism of the Board's reading of article 9 of the Bylaws is bolstered by § 2.4, cited by plaintiff, which provides that the Board has the "power[] and dut[y]" to "enforce by legal means the terms, covenants, and conditions contained in the Condominium Documents." (Id. at 3-4, § 2.4 [xv].) At the very least, these provisions of the Bylaws may reasonably read more narrowly than the Board would have it, such that the Bylaws are ambiguous on this point-a fatal defect for a CPLR 3211 (a) (1) motion. (See Mehra v Morrison Cohen LLP, 203 A.D.3d 438, 439 [1st Dept 2022].)
This court is unpersuaded by the Board's reliance on the Hirschhorn motion court's dismissal of claims against the condominium board. (See NYSCEF No. 30 at 9.) There, in granting the board's motion, the court gave weight to the "undisputed" fact that "once apprized that plaintiff had a complaint about noise from his upstairs neighbor's apartment, the Board investigated, and ascertained that that apartment was in compliance with" a condominium rule requiring "75 per cent of an apartment's flooring be covered by a carpet." (2019 NY Slip Op 30202[U], at *2.) Here, plaintiffs have alleged (and the Board does not dispute) that the Board did not investigate the individual defendants' compliance with the building's carpet rule for at least two years after the Board first received plaintiffs' noise complaints.
Ewen v Maccherone (2009 NY Slip Op 52428[U] [Civ Ct, NY County Dec. 1, 2009]), also cited by the Board, is inapposite. The motion-court decision in that case did not, as the Board suggests, address whether the condo board in that case had an "affirmative obligation[] to enforce the [building] rules against one unit owner on behalf of another unit owner"-merely whether the Board had the exclusive right to take enforcement-related steps. (NYSCEF No. 30 at 8; compare Ewen, 2009 NY Slip Op 52328[U], at *3, *4-5.) In any event, the cited decision was reversed on appeal to the Appellate Term, First Department. (32 Misc.3d 12 [App Term, 1st Dept 2011].) And in doing so, the Appellate Term noted the "[i]ncongru[ity]" that plaintiffs in the case had not named the condo board as a defendant, despite having repeatedly alleged in the complaint that their injuries stemming from their neighbors' smoking were due in part to a "building-wide ventilation problem known" to the board but not satisfactorily addressed. (Id. at 16.)
B. The Board's Argument that its Determinations About How to Respond to Plaintiffs' Noise Complaints are Shielded by the Business-Judgment Rule
The Board also argues in the alternative that its decisions about how to respond to plaintiffs' noise complaints are shielded by the business-judgment rule. Under that rule, "[s]o long as the board acts for the purposes of the [condominium], within the scope of its authority and in good faith, courts will not substitute their judgment for the board's." (Matter of Levandusky v One Fifth Ave. Apt. Corp., 75 N.Y.2d 530, 538 [1990].) The Board argues that it acted for the purpose of the condominium as a whole through its investigation and fining of defendants (thereby leading to defendants' ultimate compliance with the building's carpet rule), and that the plaintiffs cannot show that the Board acted outside the scope of its authority or in bad faith. At least at this stage of the action, this court finds the Board's argument unpersuasive.
Plaintiffs point to provisions of the condo bylaws and house rules that (i) prohibit uses of property within the building that interfere with building residents' quiet and peaceful enjoyment of the premises; and (ii) bar noise-related disturbances, in particular. (See NYSCEF No. 44 at 4-5, 10-11, citing NYSCEF Nos. 47 at § 5.6 [bylaws], 48 at § 1 [house rules].) Plaintiffs contend that these provisions show that the Board has a legitimate interest in protecting unit owners from unreasonable noise and interference with their quiet and peaceful possession of property.
The Board does not dispute this premise. Instead, it argues that its actions with respect to plaintiffs' noise complaints were undertaken in good faith to further this interest, and therefore that the business-judgment rule bars this court from second-guessing the Board's decisionmaking on this issue. The difficulty for the Board is that this argument does not account for the apparent multiyear gap between when plaintiffs first made noise complaints to the Board and when the Board first acted in response to those complaints. The Board does not attempt to explain how a decision simply to disregard plaintiffs' complaints for multiple years could be a good-faith decision made to further the legitimate interests of the building and its residents. Nor, on this record, does this court perceive an explanation.
This court does not, to be clear, decide on this motion that the Board in fact ignored years' worth of plaintiffs' noise complaints; or, for that matter, that the Board's (alleged) decision to wait at least two years before acting on those complaints is necessarily unjustifiable as a legitimate, good-faith decision. Rather, the court decides only that on the allegations of the complaint and the record developed on this motion, the Board's conduct-in particular, the Board's asserted failure to act at all prior to 2019-is not shielded by the business-judgment rule. (See Dau v 16 Sutton Place Apt. Corp., 205 A.D.3d 533, 536 [1st Dept 2022].)
The Board's motion to dismiss plaintiffs' first cause of action is denied.
III. Plaintiffs' Cross-Motion for Leave to Amend (Mot Seq 001)
Plaintiffs cross-move under CPLR 3025 (b) to add a new claim against the individual defendants for relief relating to those defendants' allegedly improper installation of flooring without Board approval. The motion is granted.
Leave to amend under CPLR 3025 (b) is freely granted: Absent prejudice or surprise, leave should be denied only if the proffered amendment is "palpably insufficient or clearly devoid of merit." (Fairpoint Cos, LLC v Vella, 134 A.D.3d 645, 645 [1st Dept 2015] [internal quotation marks].) A plaintiff need only "show that the proffered amendment" clears this low bar; it is not required also to "establish the merit of its proposed new allegations." (MBIA Ins. Corp. v Greystone & co., Inc., 74 A.D.3d 499, 500 [1st Dept 2010].)
Plaintiffs assert two bases for this cause of action. First, relying on Dubin v Glasser, plaintiffs contend that they have a claim against the individual defendants sounding in contract, as third-party beneficiaries of those defendants' contractual obligations to comply with the governing condominium documents (including the obligation to obtain approval for their flooring installation). Second, plaintiffs argue that they may bring a claim against the individual defendants under RPL § 339-j.
In Dubin, the motion court held that part of the cooperative lease in that case "and the concomitant house rules are for plaintiff's benefit," and that "the benefit is sufficiently immediate to [plaintiff] to indicate the assumption by defendant and the landlord of a duty to plaintiff." (2021 NY Slip Op 30449[U], at *2.) This court is skeptical that a condominium's house rules-which apply in undifferentiated form to all unit owners within the condominium-can supply the necessary "clear indication" that the unit owners, the condo board, and the condo sponsor, intended to confer upon particular unit owners the right to enforce provisions of the house rules against one another through third-party-beneficiary actions in contract. (Girlshop, Inc. v Abner Props. Co., 5 A.D.3d 141, 142 [1st Dept 2004]; see also Stipe v Harbor House Owners Corp., 2011 NY Slip Op 32557[U], at *14 [Sup Ct, NY County 2011] [holding that a lease provision stating that lessees "shall not permit or suffer any unreasonable noises or anything which will interfere with the rights of other lessees or unreasonably annoy them or obstruct the public halls or stairways" was insufficient to establish a clear indication of the parties' intent to confer third-party beneficiary standing to other lessees].) This court's skepticism is heightened by the prospect that permitting unit owners to bring this kind of contract-based enforcement action could undermine the governance/enforcement role and authority of condo boards.
The court need not definitively decide that issue, however: Whether plaintiffs here may sue the individual defendants in contract on a third-party beneficiary basis, this court agrees that plaintiffs should be permitted to amend their complaint to assert a claim under RPL § 339-j.
Section 339-j provides that a condominium unit owner's failure to comply with the condo bylaws, or house rules adopted under the bylaws, "shall be ground for an action... for damages or injunctive relief or both maintainable by the board of managers on behalf of the unit owners or, in a proper case, by an aggrieved unit owner." Plaintiffs' proposed amended complaint alleges that the individual defendants breached the house rules by failing to obtain Board approval for their flooring work, and seeks relief aimed at redressing that failure. To be sure, as the individual defendants point out, the proposed new claim is phrased as seeking declaratory, rather than injunctive relief. But even assuming that § 339-j does not permit aggrieved unit owners to seek declaratory relief against other owners, plaintiffs are not merely asking this court to declare the legal rights of the parties, but instead seek an order directing the individual defendants to take particular specified actions with respect to their flooring work. (See NYSCEF No. 92 at 15 ¶ 91, 16 [proposed amended complaint].) That requested order is more akin to injunctive rather than declaratory relief-and thus within the scope of § 339-j.
The question remains, though, whether the circumstances of this action make it "a proper case" for plaintiffs to seek injunctive relief against the individual defendants, as § 339-j requires. The parties have not provided, and this court's research has not found, cases construing this aspect of the statute. Construing the statute essentially as a matter of first impression, this court agrees with the individual defendants' position that the only reasonable reading of "proper case" is one in which "the Board's decision is not protected by the business-judgment rule." (NYSCEF No. 55 at 3.)
The structure of § 339-j envisions a condominium board's having primary authority to redress violations of condo bylaws or rules through an action under the statute; the statute confers a cause of action on aggrieved unit owners only as an alternative to board action. Permitting an aggrieved unit owner to sue a neighbor in a case where the board has considered legal action and declined to bring suit would undermine the board's enforcement discretion that is protected by the business-judgment rule. Put another way: Under the business-judgment rule, a condominium unit owner cannot push the board to take desired measures against a neighbor by threatening to sue the board should it not act. By the same token, a unit owner should not be able to push the board to take the desired measures against a neighbor by threatening to sue the neighbor directly unless the board acts-at least absent a private nuisance.
In that circumstance, the aggrieved unit owner could simply bring a claim sounding in private nuisance, rather than relying on RPL § 339-j.
This court's construction of RPL § 339-j does not, however, provide a basis to deny plaintiffs' cross-motion for leave to amend. It is unclear from the record-and the Board's papers do not discuss-whether the Board ever reached a determination about the individual defendants' (putative) noncompliance with the applicable bylaws or house rules governing defendants' floor replacement. At this stage of the litigation, therefore, this court lacks a basis to conclude that the protections of the business-judgment rule bar a § 339-j claim focused on the individual defendants' floor-related work in their unit. And, as discussed above, this court declines to conclude on the current motions that the Board's response to plaintiffs' post-floor-replacement noise complaints is shielded by the business-judgment rule.
Accordingly, for the foregoing reasons, it is
ORDERED that the individual defendants' motion under CPLR 3211 (a) (7) to dismiss plaintiffs' second and third causes of action (mot seq 001) is granted; and it is further
ORDERED that plaintiffs' cross-motion under CPLR 3025 (b) for leave to assert an additional cause of action against the individual defendants (mot seq 001) is granted, and the proposed amended complaint appearing at NYSCEF No. 42 will be deemed the operative complaint in this action upon service of a copy of this order with notice of entry; and it is further
ORDERED that the Board's motion under CPLR 3211 (a) (1) and (a) (7) to dismiss plaintiffs' first cause of action is denied; and it is further
ORDERED that plaintiffs serve notice of entry on all parties.