Opinion
Index No. 160440/2019 Motion Seq. No.4
08-08-2022
YETTA G. KURLAND, Plaintiff(s), v. 161 WEST 16TH ST. OWNERS CORP., and BOARD OF DIRECTORS OF THE 161 WEST 16TH ST. OWNERS CORP., Defendant(s)
Unpublished Opinion
MOTION DATE: 5/25/22
PRESENT: HON. LEWIS J. LUBELL, J.S.C.
DECISION & ORDER ON MOTION
Lewis J. Lubell, Judge
Plaintiff moves (Motion #4) for leave to reargue plaintiffs prior motion (Motion #1) for summary judgment and defendants' cross-motion to dismiss or for summary judgment and plaintiffs motion (Motion #3) for a preliminary injunction.
The following papers filed on NYSCEF were read on the motion: Doc. Nos.
Notice of Motion (#4), Affidavit, Exhibits (6), and Memo of Law 86-94
Memo of Law in Opposition 96
Memo of Law in Reply and Exhibit 97-98
By way of background, October 25, 2019, plaintiff commenced this action with the filing of a summons and complaint. The complaint alleges that plaintiff is the proprietary lessee and shareholder of apartment 5C (Apartment) at a premises known as 161 West 16th Street, New York, New York (Building). The complaint alleges that defendant 161 West 16th St. Owners Corp. (Co-op) is a cooperative housing corporation, which owns the Building. The complaint alleges that defendant Board of Directors of the 161 West 16th St. Owners Corp, is the board of directors of the Co-op (Co-op Board), which manages all maintenance and affairs of the Building. The complaint alleges that plaintiff has undertaken a renovation project with respect to the Apartment (Renovations), which includes improvements to a portion of the roof area directly appurtenant to the apartment (Roof) and to which defendants agreed (Agreement). The complaint alleges that defendants have now refused to sign the necessary forms, approvals and/or consents as required for plaintiff to complete the Renovations as they relate to the Roof. This action ensued. The complaint sets forth causes of action for declaratory relief, injunctive relief, breach of contract, and a claim for violation of Civil Rights Law § 52-a.
The first claim seeks a declaration that, among other things, defendants agreed to the Renovations and that plaintiff is entitled to complete the Renovations as they relate to the Roof and that plaintiff is entitled to use the Roof. The second claim seeks an injunction, directing, among other things, that defendants comply with the Agreement as it relates to the Roof and allow plaintiff to use the Roof and remove the surveillance cameras that are monitoring the Roof. The third claim seeks, in the alternative to the first and second claims, monetary damages as a result of defendants' alleged breach of the Agreement in refusing to sign the necessary forms, approvals and/or consents as required for plaintiff to complete the Roof portion of the Renovations. The fourth claim seeks monetary damages due to defendants' installation of surveillance cameras on the Roof in alleged violation of Civil Rights Law § 52-a. After commencement, defendants interposed an answer with certain . affirmative defenses, including that "Plaintiffs alleged damages, if any, have been caused by the acts or omission[s] of third parties over whom Defendants have no control or responsibility and other circumstances for which Defendants are not responsible."
Subsequently, plaintiff moved (Motion #1) for summary judgment and defendants cross-moved to dismiss or for summary judgment and plaintiff moved (Motion #3) for a preliminary injunction. On November 15, 2021, the Court issued a decision and order, denying plaintiffs motion for summary judgment, granting defendants' motion for summary judgment, and denying plaintiffs motion for a preliminary injunction. Plaintiff now moves (Motion #4) for leave to reargue.
CPLR 2221 provides that a motion to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion" (see CPLR 2221[d] [2])." 'Reargument is not designed to afford the unsuccessful party successive opportunities to reargue issues previously decided ... or to present arguments different from those originally asserted'" (Setters v AI Properties and Developments (USA) Corp., 139 A.D.3d 492, 492 [1st Dept 2016], quoting William P. Pahl Equip. Corp, v Kassis, 182 A.D.2d 22, 27 [1st Dept 1992])
In support of the motion, plaintiff makes several arguments. First, plaintiff contends that the Court interpreted Civil Rights Law § 52-a too narrowly and failed to consider fashioning an equitable remedy to compel defendants to reposition or relocate the surveillance cameras on the roof so that they are not directed into plaintiff s living room. Second, plaintiff contends that the Court incorrectly held that the Roof is part of the Commercial Unit. Third, plaintiff contends that the Court incorrectly held that the Residential Unit did not have the authority to approve plaintiffs alteration to the Roof. Lastly, plaintiff contends that the Court employed the wrong standard in ruling on the claim based on equitable estoppel.
First, Civil Rights Law § 52-a (1) provides in relevant part that:
"Any owner or tenant of residential real property shall have a private right of action for damages against any person who installs or affixes a video imaging device on property adjoining such residential real property for the purpose of video taping
or taking moving digital images of the recreational activities which occur in the backyard of the residential real property without the written consent thereto of such owner and/or tenant with intent to harass, annoy or alarm another person, or with intent to threaten the person or property of another person."Civil Rights Law § 52-a (2) further provides that the term" 'backyard' shall mean that portion of the parcel on which residential real property is located which extends beyond the rear footprint of the residential dwelling situated thereon, and to the side and rear boundaries of such parcel extending beyond the rear footprint of such residential dwelling,"
This statute clearly does not provide a party with a private right of action relating to the installation of a camera on a roof, which is pointed toward the window of an apartment. The Court declines the invitation to rewrite the statute to provide for such a private right of action as that determination is properly left to the legislature (Appleton Acquisition, LLC v Natl. Hous. Partnership, 34 A.D.3d 339, 340 [1st Dept 2006], affd, 10 N.Y.3d 250 [2008]).
Second and third, plaintiff incorrectly asserts that the Court held that the Roof was part of the Commercial Unit. Rather, the Court reviewed the governing documents of the Building and concluded therefrom that the Declaration divided the Building into the Residential Unit and the Commercial Unit, with the Commercial Unit having certain limited rights to the Roof and the Residential Unit having none. Regardless, the Court previously considered and rejected plaintiff's contention that the Residential Unit had the authority to approve alterations to the Roof and plaintiff has failed to identify any matter of fact or law overlooked or misapprehended by the Court that would alter this conclusion.
Fourth, plaintiff contends that, as to the claim for equitable estoppel, the question is not whether defendants agreed to the renovations on the Roof, but whether it was reasonable for plaintiff to believe and rely upon her understanding that she was being allowed to complete the roof deck on the Roof. In its prior decision, the Court viewed plaintiffs evidence in the light most favorable to plaintiff and noted the following: there was a proposal to create a roof deck on the Roof (Exhibit 3), which was not subsequently included in the initial application for work (Exhibit 4); there was another proposal with revisions that included plans to replace a certain window in the Apartment with different windows, but did not include a proposal to create a roof deck on the Roof (Exhibit 5); the proposal was approved and an application for a permit was submitted, which did not include any reference to a roof deck (Exhibit 6); the proposal was further revised/amended, which did not include a proposal to create a roof deck on the Roof (Exhibit 9); the proposal was approved (Exhibit 10); the parties entered into a further agreement, which provided in pertinent part: .
In the supporting affidavit, plaintiff refers to these windows as "custom terrace windows/doors" or a "door." The proposal refers to them simply as "windows."
"The Corporation has consented to the installation of the window model . . . provided that the Shareholder agrees by execution of this Rider that Shareholder will not use the window as an entry to the roof of the adjacent unit owner, and will not, without the written consent of such owner of the adjacent unit, use said roof in any way or manner, including, without limitation, entry on that roof or permitting any person or pet of Shareholder to enter onto said roof."
Although plaintiff contends that the "adjacent unit owner" means her neighbor in the Residential Unit or the Commercial Unit Owner, this reading is unsupported by the Declaration, wherein the Commercial Unit Owner is the only party to whom any rights to the Roof are accorded. As the foregoing makes plain, there is no evidence that defendants agreed to permit plaintiff to complete the roof deck on the Roof and no evidence that could have led plaintiff to reasonably believe that defendants had agreed to permit her to complete the roof deck on the Roof.
To the extent not specifically addressed herein, the Court finds plaintiff s remaining arguments to be without merit. Based on the foregoing, it is hereby
ORDERED that plaintiffs motion (Motion #4) for leave to reargue is granted and, upon reargument, the Court adheres to its prior decision.