Opinion
2016-0843
10-18-2016
Bluff Point Townhouse Owners Association, Inc., Plaintiff, v. Lisa Kapsokefalos and KENNETH GERDES, Defendants.
Niles & Bracy, PLLC, Plattsburgh, (John M. Grotty, of counsel) for plaintiff. The Clements Firm, Glens Falls, (Thomas G. Clements, of counsel) for defendants.
Niles & Bracy, PLLC, Plattsburgh, (John M. Grotty, of counsel) for plaintiff. The Clements Firm, Glens Falls, (Thomas G. Clements, of counsel) for defendants. Robert J. Muller, J.
In its recent Decision and Order denying a motion for contempt, the Court set forth some of the background of this litigation as follows:
"Defendant Lisa Kapsokefalos and her husband, defendant Kenneth Gerdes, are the owners of a townhouse located at 131 Wood Cliff Drive in the Town of Plattsburgh, Clinton County. This townhouse is within the community of Bluff Point and subject to various restrictive covenants that run with the land. Plaintiff is a not-for-profit corporation formed for the purpose of enforcing these restrictive covenants, as well as collecting monthly dues to cover the costs of maintaining common areas in the community.Specifically, defendants were directed to pay the monthly dues outstanding from August 2007 to
"There is a long history of litigation between these parties, with two prior actions having been commenced against defendants as a result of their failure to comply with certain restrictive covenants and pay the monthly dues. The second of these two actions was assigned to this Court with a Decision and Order issued on January 6, 2014 awarding plaintiff summary judgment for the relief requested in the complaint.
The first action was assigned to the Honorable Kevin Ryan of the Clinton County Supreme Court and also resulted in an award of summary judgment to plaintiff (see Perkins v Kapsokefalos, 57 AD3d 1189 [2008], lv denied 12 NY3d 705 [2009]).
December 2013. While defendants complied with this Decision and Order, they have since refused to pay monthly dues and presently owe $2,900.00 for those dues outstanding from January 2014 to June 2016.
This Decision and Order was subsequently modified on appeal, but only with respect to the calculation of interest (see Bluff Point Townhouse Owners Assn., Inc. v Kapsokefalos, 129 AD3d 1267 [2015], lv denied 26 NY3d 910 [2015]).
"Additionally, on June 16, 2016, Kapsokefalos painted a sign on the garage door of her townhouse unit which reads 'Property Rights Matter!!!'. According to Emilie Perkins, defendants' neighbor, the sign is 'written in large letters and appears to have been spray painted [with] the visual appearance of graffiti...' Kapsokefalos 'also painted with red paint the trim around the second story windows of her townhouse[, which] had been painted white in conformance with the color scheme approved for exterior paint trim colors by [plaintiff] at earlier annual meetings'."(Decision and Order, dated September 9, 2016, at 1-2).
Plaintiff commenced this action in July 2016 seeking, among other things, to recover past due homeowners' association fees as well as to compel compliance with various covenants. In the current motion, plaintiff requests a preliminary injunction regarding the following:
"a. Damage caused by the Defendants to the exterior of the front of their townhouse by painting a sign on the garage door and by painting nonconforming colors to the trim around the second floor windows, garage door, and front door.(Plaintiff's Memorandum of Law ¶ 3).
"b. Cutting back or trimming of overgrown vegetation in the front and rear of the Defendants' townhouse unit; and
"c. Authorization of repair work needed for a chimney shared by Units 129 and 131."
"A movant's burden of proof on a motion for a preliminary injunction is particularly high" (Council of City of NY v Giuliani, 248 AD2d 1, 4 [1998], appeal dismissed and lv denied 92 NY2d 938 [1998]); see Sync Realty Group, Inc. v Rotterdam Ventures, Inc., 63 AD3d 1429, 1430 [2009]). "To establish entitlement to a preliminary injunction, plaintiff [is] required to demonstrate a likelihood of success on the merits, irreparable harm if the injunction is not granted and that the balance of the equities is in its favor" (Sync Realty Group, Inc. v Rotterdam Ventures, Inc., 63 AD3d at 1430; see CPLR 6301; Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 NY3d 839, 840 [2005]; Emerald Green Prop. Owners Assn., Inc. v Jada Developers, LLC, 63 AD3d 1396, 1397 [2009]).
After reviewing the litigation history of these parties, including decisions of the Appellate Division, and noting the similarities of the current issues to ones that have been decided adversely to defendants, the Court concludes that plaintiff has established a likelihood that it will prevail in this litigation. Plaintiff has also established harm and a balancing of the equities on some, but not all, of the matters for which it is requesting a preliminary injunction.
The painting of a graffiti-like sign on their garage door was extremely unsightly and could affect surrounding townhouse property values. Defendants, however, have submitted proof that they have recently painted over such sign. Although this act by defendants could render this aspect of the relief requested moot, given defendants' history it is not inconceivable that they might repeat the conduct. To avoid any further similar actions by defendants during the pendency of this litigation, the Court will enjoin defendants from any additional painting of signs or lettering on the exterior of their premises.
Defendants appear to have used nonconforming paint on trim and doors. While the bright color they used creates a degree of dissonance with surrounding properties, this does not rise to the level of harm or the tipping of equities as the aforementioned extremely unsightly, graffiti-like lettering that had been placed on the garage door. Thus, the Court is not going to direct repainting of such exterior area at this time. The Court, however, will restrain defendants from any further painting of exterior premises with paint which is not in compliance with exterior paint colors that have been approved by plaintiff for use by all owners.
Defendants' counsel states in his affidavit that "[d]efendants are in the process of repainting the trim around their windows, their garage door and their front door in their original color" (Clements affidavit, Sept. 30, 2016, ¶ 8). As with the paint on the garage, such fact does not render this issue moot under the prevailing circumstances.
The chimney issue will be addressed next. Defendants contend that, since the chimney was not specifically mentioned in the complaint, plaintiff has no right to relief regarding the chimney. However, pleadings are liberally construed (see CPLR 3026; Augur v Augur, 90 AD3d 1111, 1113, n 2 [2011]), can be amplified by a bill of particulars (see CPLR 3041; Siegel, NY Prac § 238, at 414 [5th ed]) and, if necessary, freely amended (see CPLR 3025 [b]). Construing the complaint liberally, it alleges repeated and ongoing failure by defendants to adhere to covenants, which could be amplified or amended to implicate the issue regarding the chimney. The chimney is apparently located on the roof of both defendants' townhouse and the adjoining owner's attached townhouse, with each essentially owning half the chimney. To accomplish work on the chimney, a contractor would necessarily be working on both owners' property. The condition of the chimney has reportedly deteriorated to the point where water damage is occurring in the adjoining property owner's townhouse. Significantly, according to papers submitted by plaintiff, the adjoining owner and/or plaintiff have the right under article 9 of the covenants to enter defendants' property to the extent necessary to effect the chimney repair [Letter of Plaintiff's President, dated Sept. 27, 2015, annexed as Exhibit B to Crotty affirmation of Sept. 15, 2016]. There is no allegation that defendants are blocking this right of access and, in essence, the dispute appears to distill to whether plaintiff or the adjoining landowner can recover half of the cost for the work from defendants. Plaintiff or the adjoining landowner can seek such relief from defendants as part of an action for damages. Plaintiff has not established that judicial intervention is necessary for the work to be done. If defendants were, in fact, blocking access so as to prevent the repair, the Court would likely enjoin defendants from preventing a contractor hired by plaintiff from entering and accomplishing the necessary work on the chimney shared by units 129 and 131; but, is not now so ruling.
Although another area owner stated in an affidavit that she is "aware of [the adjoining owner] having had some leaks into the interior of her home with water intrusion coming around the chimney" [Perkins affidavit, Sept. 14, 2016, ¶ 7], there is no affidavit from the adjoining owner.
Lastly, the vegetation as depicted in the photographs in the submitted papers does not, in the Court's opinion, create a condition so unsightly, dangerous or otherwise sufficient to establish harm to plaintiff and/or equities in favor of plaintiff so as to grant preliminary relief at this time. If, as is the situation with the chimney, plaintiff has authority under the covenants to accomplish this work and is primarily seeking reimbursement from defendants, such monetary relief can be sought separately and injunctive relief would not be necessary.
With regard to the undertaking, "[t]he amount of [an] undertaking is left to the sound discretion of the court, although it should be rationally related to the potential damages' that defendants could recover if an injunction is ultimately deemed unwarranted" (Cooperstown Capital, LLC v Patton, 60 AD3d 1251, 1253-1254 [2009], quoting Bonded Concrete, Inc. v Town of Saugerties, 42 AD3d 852, 854-855 [2007]; see CPLR 6312 [b]). There is no indication of potential significant damages to defendants in the event the injunction is found to have been unwarranted. Nevertheless, an undertaking is required (see e.g. Livas v Mitzner, 303 AD2d 381, 383 [2003]) and, under the circumstances, the Court directs plaintiff to post an undertaking of $1,000.00.
Accordingly, plaintiff's motion is granted, in part, to the extent that, pending the outcome of this litigation, it is
ORDERED that defendants are enjoined from any additional painting of any signs, symbols, numbers, lettering or like markings on the exterior of their premises; and it is further
ORDERED that defendants are enjoined from any further painting of the exterior of their premises with paint which is not in compliance with exterior paint colors that have been approved by plaintiff for use by all owners; and it is further
ORDERED that plaintiff shall post an undertaking in the amount of $1,000.00 (one thousand dollars) on or before November 14, 2016; and it is further
ORDERED that plaintiff's motion is otherwise denied, without prejudice.
The above constitutes the Decision and Order of this Court.
The original of this Decision and Order has been filed by the Court together with plaintiff's Notice of Motion for Preliminary Injunction dated September 15, 2016. Counsel for plaintiff is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry upon defendants in accordance with CPLR 5513. Dated: October 18, 2016 Lake George, New York ____________________________________ ROBERT J. MULLER, J.S.C. ENTER: Papers reviewed : 1. Affirmation In Support of Plaintiff's Motion of John M. Crotty, Esq., dated September 15, 2016, annexed Exhibits A through E (including Affidavit of Stuart Crisp, sworn to September 6, 2016 [Exhibit D] and Affidavit of Emilie Perkins, sworn to September 14, 2016 [Exhibit E]). 2. Plaintiff's Memorandum of Law In Support of the Motion, dated September 15, 2016. 3. Affidavit In Opposition of Thomas G. Clements, Esq., sworn to September 30, 2016, annexed Exhibits A through C. 4. Letter Memorandum of Law In Opposition to the Motion, dated September 30, 2016. 5. Reply Affirmation of John M. Crotty, Esq., dated October 6, 2016, annexed Exhibits A through B. 6. Reply Affidavit of Emilie Perkins, sworn to October 5, 2016. 7. Reply Affidavit of Stuart Crisp, sworn to October 6, 2016, annexed Exhibits A through F. 8. Supplemental Memorandum of Law In Support of the Motion, dated October 6, 2016.