Bd. of Managers of 400 Cent. Park W. Condo. v. Henriquez-Berman

Full title: BOARD OF MANAGERS OF 400 CENTRAL PARK WEST CONDOMINIUM Plaintiff v…

Court: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 42

Date published: Jun 26, 2018

2018 N.Y. Slip Op. 31397 (N.Y. Sup. Ct. 2018)

Opinion

INDEX NO. 152705/2016

06-26-2018

BOARD OF MANAGERS OF 400 CENTRAL PARK WEST CONDOMINIUM Plaintiff v. JOSEFINA HENRIQUEZ-BERMAN and CHARLIE BERMAN Defendant.

NANCY M. BANNON, J.

NYSCEF DOC. NO. 41 DECISION, ORDER AND JUDGMENT MOT SEQ 002 NANCY M. BANNON, J.:

I. INTRODUCTION

The plaintiff condominium, seeking to recover unpaid common charges and enjoin violations of its by-laws upon theories of breach of contract and nuisance, moves pursuant to CPLR 3212 for summary judgment against the defendants and to hold the defendants in contempt for their violation of the court's January 17, 2017, decision and order, which enjoined the defendants from smoking marijuana in Unit 1S of the condominium and permitting marijuana smoke and excessively loud noises from infiltrating into the common areas and other units of the condominium pending the disposition of this action. The defendants, Josefina Henriquez-Berman and her son, Charlie Berman, who respectively own and occupy Unit 1S, do not oppose the motion. The motion is granted in part.

II. DISCUSSION

It is well settled that the movant on a summary judgment motion "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case." See Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985). The motion must be supported by evidence in admissible form (see Zuckerman v City of New York, 49 NY2d 557 [1980]), and the pleadings and other proof such as affidavits, depositions, and written admissions. See CPLR 3212. The "facts must be viewed in the light most favorable to the non-moving party." Vega v Restani Constr. Corp., 18 NY3d 499, 503 (2012) (internal quotation marks and citation omitted). Once the movant meets its burden, it is incumbent upon the non-moving party to establish the existence of material issues of fact. See id., citing Alvarez v Prospect Hosp., 68 NY2d 320 (1986). The "[f]ailure to make [a] prima facie showing [of entitlement to summary judgment] requires a denial of the motion, regardless of the sufficiency of the opposing papers." Vega v Restani Constr. Corp.; supra, at 503.

In support of the motion, the plaintiff has submitted the condominium's by-laws, which apply to all owners and occupants of the condominium. As described more fully in the court's decision and order dated January 17, 2017, the by-laws prohibit nuisance within the condominium property, as well as improper, offensive, or unlawful uses of the property. The by-laws empower the plaintiff to adopt and amend rules and regulations (the House Rules) governing "the details of the operation and use of the property." Section B of the House Rules provides that residents and their families, employees, or visitors shall at all times respect by the quiet enjoyment of the premises by neighbors and other residents by keeping music and other noise-generation activities to a level that does not intrude upon adjacent apartment or common areas. The House Rules also contain a section entitled "Second-Hand Smoke," which, among other things, requires that owners and residents may smoke in their units only to the extent that they are able to ensure that the smoke does not vent into adjacent apartments or common areas.

The plaintiff submits affidavits of three of its managing agents, two affidavits of another resident of the condominium respectively dated before and after the court's decision and order dated January 17, 2017, business records memorializing complaints of other residents and visitors and observations of building staff, and an account statement showing a balance of $35,036.70 due on the defendants' unit account as of December 14, 2017. The plaintiff's submissions demonstrate that the defendants smoked marijuana in their unit and/or permitted others to do so, that approximately seventy one complaints have been made since November 3, 2013, that the smoke emanating from the defendants' unit infiltrated into those other units and common areas of the condominium, and that the smoke and odor offended and annoyed the other residents and visitors. In an affidavit, another resident of the condominium building avers that the smoke and odor has caused or exacerbated headaches. In the affidavit of one of the plaintiff's managing agents, Ingrid Dziedziech, Dziedziech states that she received an email from the owner of Unit 1T in the condominium building, in which the occupant advised her that a potential buyer of his apartment had backed out "because of the constant smell of marijuana and loud music emanating from my neighbor." The plaintiff's submissions also demonstrate that other residents complained on approximately thirteen occasions about excessively loud music and excessive "construction noise" emanating from the defendants' unit. According to the plaintiff, defendant Josefina Henriquez-Berman has received cease and desist letters and been fined at least twenty times for these smoke and noise violations, and both defendants, despite being warned of possible legal action, have promised to cease engaging, but have not abated the violations.

The plaintiff has made the requisite showing as to its first and third causes of action seeking a permanent injunction. A party seeking a permanent injunction must submit proof of (1) the existence of a violation of a right presently occurring, or threatened and imminent, (2) that it had no adequate remedy at law, (3) that it will suffer irreparable harm absent the injunctive relief, and (4) that the equities are balanced in its favor. International Shoppes, Inc. v At the Airport, LLC, 131 AD3d 926 (2^nd Dept. 2015); see Lemle v Lemle, 92 AD3d 494 (1^st Dept. 2012); Mini Mint Inc. v Citigroup, Inc., 83 AD3d 596 (1^st Dept. 2011). The plaintiff demonstrates the violation of a right presently occurring and likely to continue under theories of both breach of contract and common-law private nuisance. It is well settled that a violation of a condominium's by-laws constitutes a breach of contract. See Big Four LLC v Bond St. Lofts Condominium, 94 AD3d 401 (^st Dept. 2012). The plaintiff demonstrates that the defendants breached their obligation to comply with Article V, section 13(b) of the by-laws by engaging in a practice that was a source of annoyance to the condominium's residents or occupants and engaging in conduct that interfered with those residents' and occupants' peaceful possession of their units. The plaintiff also submits proof sufficient to establish that the defendants violated the portion of the same by-law which expressly prohibits nuisances, and that the defendants have created a common-law private nuisance, inasmuch as their persistent smoking of marijuana and/or permitting others to do so in their unit, as well as the excessively loud music emanating from their unit, in violation of the by-laws, constitute an intentional, unreasonable, and substantial interference with a neighbors' right to use and enjoy their units and the common areas of the condominium. See Circus Disco v New York State Liquor Auth., 51 NY2d 24 (1980) [noise]; Berenqer v 261 W. LLC, 93 AD3d 175 (1^st Dept. 2012) [noise and odor]; 61 W. 62 Owners Corp. v CGM Emp LLC, 86 AD3d 403 (1^st Dept. 2011) [noise]; see generally Copart Indus., Inc. v Consol.Edison Co. of N.Y., 41 NY2d 564 (1977).

Since it has been held that exposure to second-hand smoke from a neighboring apartment does not give rise to cause of action to recover money damages (see Feinstein v Rickman, 136 AD3d 863 [2^nd Dept. 2016]), any injury caused by the smoke conditions arising from the defendants' conduct here is not compensable by money damages. Thus, the plaintiff has demonstrated that irreparable injury, requiring injunctive relief, would result should the smoke condition be permitted to persist. While money damages may be available to compensate a person for a nuisance created by loud noises, injunctive relief is not precluded where, as here, such damages are inadequate to abate the nuisance. See 61 W. 62 Owners Corp. v CGM Emp LLC, supra.

The balance of equities clearly favors the plaintiff. The detriment to the defendants that would be engendered by granting the injunction and directing them to cease permitting marijuana smoke and excessively loud noises from infiltrating into the common areas and other units of the condominium is far outweighed by the detriment that would inure to the plaintiff and the defendants' neighbors by virtue of exposure to the smoke and excessive noise were the court to refuse to grant the plaintiff the injunctive relief they seek.

As to the plaintiff's second cause of action seeking a declaratory judgment that the defendants are in breach of their obligation to pay common charges, late fees, and fines due and owing to the defendants in the amount of $35,036.70, the court does not find the relief sought proper under the circumstances of this case. As the First Department has stated, a declaratory judgment "'requires an actual controversy between genuine disputants with a stake in the outcome,'" and "may not be used as a vehicle for an advisory opinion." Long Is. Light. Co. v Allianz Underwriters Ins. Co., 35 AD3d 253, 253 (1^st Dept. 2006), quoting Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3001:3. Moreover, where there exists an adequate, alternative remedy at law, such as breach of contract, a cause of action for a declaratory judgment is unnecessary and inappropriate. See Cherry Hill Mkt. Corp. v Cozen O'Connor P.C., 118 AD3d 514 (1^st Dept. 2014); Apple Records v Capitol Records, 137 AD2d 50 (1^st Dept. 1988). Such is the case here. Accordingly, the plaintiff is not entitled to summary judgment on its second cause of action.

As to the plaintiff's fourth cause of action seeking reimbursement of legal fees, attorneys' fees that are merely incidents of litigation are not recoverable absent a specific contractual provision or statutory authority. See Flemming v Barnwell Nursing Home and Health Facilities, Inc., 15 NY3d 375 (2010); Coopers & Lybrand v Levitt, 52 AD2d 493 (1^st Dept. 1976); see also Goldberg v Mallinckrodt, Inc., 792 F2d 305 (2^nd Cir. 1986); Rich v Orlando, 108 AD3d 1039 (4^th Dept. 2013). Article V, section 7 of the bylaws expressly provides that if a unit owner is in default of her obligation to timely pay common charges or any assessment as determined by the plaintiff, such unit owner shall be obligated to pay "all expenses, including attorneys' fees, incurred by the Board of Managers in any proceeding brought to collect such unpaid common charges or assessments." Since the plaintiff's first, second, and third causes of action seek only equitable relief, and the plaintiff has not asserted a claim at law to recover unpaid common charges or fees, the plaintiff is not entitled to attorneys' fees at this juncture.

Pursuant to Judiciary Law § 753, this court may "punish, by fine and imprisonment, or either, a neglect or violation of a duty, or other misconduct, by which a right or remedy of a party to a civil action . . . pending in the court may be defeated, impaired, impeded, or prejudiced," by a party to the action who has disobeyed a lawful mandate of the court. "Contempt is a drastic remedy which should not be granted absent a clear right to such relief." Pinto v Pinto, 120 AD2d 337, 338 (1^st Dept. 1986). To prevail on a motion to punish a party for civil contempt, a party must establish that the party to be held in contempt violated a clear and unequivocal court order, known to the parties. See Judiciary Law § 753(A)(3); see also McCormick v Axelrod, 59 NY2d 574 (1983), amended 60 NY2d 652 (1983). The movant must also establish that the party to be held in contempt engaged in conduct that was calculated to and actually did defeat, impair, impede, and prejudice the rights of the movant. See 450 West 14th St. Corp. v 40-56 Tenth Avenue, LLC, 15 AD3d 166 (1^st Dept. 2005); Lipstick, Ltd. v Grupo Tribasa, S.A. de C.V., 304 AD2d 482 (1^st Dept. 2003).

In support of the branch of the plaintiff's motion seeking to hold the defendants in contempt and for sanctions against the defendants, the plaintiffs have submitted proof that the defendants have not complied with the court's decision and order dated January 17, 2017, which preliminarily enjoined the defendants from permitting smoke and excessively loud noises from infiltrating from Unit 1S into common areas or other units in the condominium. Specifically, since the issuance of that order, thirteen complaints about marijuana smoke and odors allegedly coming from Unit 1S and six complaints about loud noises coming from Unit 1S have been logged in the condominium building link system. While some of the complaints about marijuana smoke and odors do not indicate the source of the odors, at least six specifically state that the odor came from Unit 1S. Moreover, in the affidavits of Ingirid Dziedsiech and of Mark Botnick, who is a resident of the unit two doors down from Unit 1S, both Dziedsiech and Botnick describe several specific occasions after the court order when they detected marijuana odors and heard excessively loud music emanating from Unit 1S.

The plaintiff has thus established that a lawful order of the court was in effect, clearly expressing an unequivocal mandate, that the order was disobeyed, that the defendants had knowledge of its mandate and made no attempt to comply therewith, and that the plaintiff, and the residents and employees of the condominium, have been prejudiced by the defendants' noncompliance, which has caused them to continue to suffer the nuisances created or permitted by the defendants and has caused the plaintiff to incur the additional expenses associate with making the instant motion. See CPLR 5251; Gryphon Domestic VI, LLC v APP Intl. Finance Co., 58 AD3d 498 (1^st Dept. 2009). Under these circumstances, the court finds the defendants to be in contempt. The court orders as a penalty that the defendants be fined in the amount of the legal fees and costs incurred by the plaintiff in connection with obtaining the January 17, 2017, preliminary injunction, as well as those legal fees and costs incurred by the plaintiff in bringing this application for contempt, in an amount to be determined by a Judicial Hearing Officer or Special Referee, plus the statutory amount of $250.00. See Judiciary Law § 773.

IV. CONCLUSION

In light of the foregoing, it is

ORDERED that plaintiff's motion is granted, without opposition, to the extent of (1) awarding the plaintiff summary judgment on its cause of action seeking to permanently enjoin the defendants from permitting smoke and excessively loud noises from emanating from Unit 1S of 400 Central Park West, New York, New York, into common areas or other units of the condominium, and (2) holding the defendants in contempt, and the motion is otherwise denied; and it is further

ADJUDGED that the defendants are hereby permanently enjoined from permitting smoke and excessively loud noises from emanating from Unit 1S of 400 Central Park West, New York, New York, into common areas or other units of the condominium; and it is further,

ADJUDGED that the defendants are held in contempt, and shall pay to the plaintiff a fine in the amount "of the legal fees and costs incurred by the plaintiff in connection with obtaining the January 17, 2017, preliminary injunction, as well as those legal fees and costs incurred by the plaintiff in bringing the instant motion for contempt, in an amount to be determined by a Judicial Hearing Officer or Special Referee, plus the statutory amount of $250.00; and it is further,

ORDERED that a Judicial Hearing Officer ("JHO") or Special Referee shall be designated to hear and report to this Court on the following individual issues of fact, which are hereby submitted to the JHO/Special Referee for such purpose: the issue of the amount due to the plaintiff for attorneys' fees and costs incurred by the plaintiff in connection with obtaining the January 17, 2017, preliminary injunction and bringing the instant motion for contempt; and it is further,

ORDERED that this matter is hereby referred to the Special Referee Clerk (Room 119M, 646-386-3028 or spref@nycourts. gov) for placement at the earliest possible date upon which the calendar of the Special Referees Part (Part SRP), which, in accordance with the Rules of that Part (which are posted on the website of this court at www .nycourts. gov/ supctmanh at the "References" link under "Courthouse Procedures"), shall assign this matter to an available JHO/Special Referee to hear and report as specified above; and it is further,

ORDERED that counsel for the plaintiff shall, within 15 days from the date of this Order, submit to the Special Referee Clerk by fax (212-401-9186) or email, an Information Sheet (which can be accessed at the "References" link on the court's website) containing all the information called for therein and that, as soon as practical thereafter, the Special Referee Clerk shall advise counsel for the parties of the date fixed for the appearance of the matter upon the calendar of the Special Referees Part; and it is further,

ORDERED that the plaintiff shall serve a proposed accounting of attorneys' fees within 24 days from the date of this order and the defendant shall serve objections to the proposed accounting within 20 days from service of the plaintiff's papers and the foregoing papers shall be filed with the Special Referee Clerk at least one day prior to the original appearance date in Part SRP fixed by the Clerk as set forth above; and it is further,

ORDERED that the parties shall appear for the reference hearing, including with all witnesses and evidence they seek to present, and shall be ready to proceed, on the date first fixed by the Special Referee Clerk subject only to any adjournment that may be authorized by the Special Referees Part in accordance with the Rules of that Part; and it is further,

ORDERED that the hearing will be conducted in the same manner as a trial before a Justice without a jury (CPLR 4320[a]) (the proceeding will be recorded by a court reporter, the rules of evidence apply, etc.) and, except as otherwise directed by the assigned JHO/Special Referee for good cause shown, the trial of the issues specified above shall proceed from day to day until completion; and it is further,

ORDERED that any motion to confirm or disaffirm the Report of the JHO/Special Referee shall be made within the time and in the manner specified in CPLR 4403 and Section 202.44 of the Uniform Rules for the Trial Courts, and, upon disposition of that motion, Plaintiff may enter an amended judgment adding the award of attorneys' fees and costs to the amount recovered, if any; and it is further,

ORDERED that the plaintiff shall serve a copy of this order upon the defendants within 15 days of this order.

This constitutes the Decision and Order of the court. Dated: June 26, 2018

ENTER: /s/_________

J.S.C.