Opinion
Index No. 711855/18 Mot. Seq. No. 3
08-09-2024
MYOUNG JA LEE, Plaintiff, v. METRO MANAGEMENT, DAVID BARRON, BOARD OF DIRECTORS OF BELL APARTMENTS COOP ASSOCIATION, BELL APARTMENTS COOP ASSOCIATION, SHEETAL SANMEET DEO, and JOHN DOES OR JANE DOES 1 THROUGH 6, Defendants
Unpublished Opinion
Mot. Date: 6/18/24
PRESENT: HON. TIMOTHY J. DUFFICY, Justice
SHORT FORM ORDER
TIMOTHY J. DUFFICY, J.S.C.
PAPERS NUMBERED
Notice of Motion- Affirmation-Exhibits................................... EF 55-71
Notice of Cross-Motion- Affirmation- Exhibits........................ EF 72-84
Affirmation In Opposition-Exhibits.......................................... EF 86-93
Reply Affirmation in Support of Cross-Motion........................ EF 95
Reply Affirmation in Support of Motion.................................. EF 97-98
Upon the foregoing papers it is ordered that the motion and cross-motion are determined, as follows:
Plaintiff Myoung Ja Lee (Lee), a shareholder and resident of Unit IC in Bell Apartments, filed the within action, on August 1, 2018, against defendants Metro Management, David Barron, Board of Directors of Bell Apartments Coop Association, Bell Apartments Coop Association (Bell Apartments) and Sheetal Sanmeet Deo (Deo), alleging claims for negligence (first cause of action), infliction of emotional distress (second cause oi action), breach ot Coop Agreement and related instruments (third cause of action) and breach of fiduciary duty (fourth cause of action), arising out of a series of purported interactions between plaintiff Lee and defendant Deo, who resides in Unit 1H in Bell Apartments, occurring between March 2015 - September 2018.
More specifically, plaintiff Lee, in her "Verified Bill of Particulars for Defendant Sanmeet Deo" (NYSCEF Doc. No. 60) alleges that:
On March 23, 2015, defendant Deo's children rang plaintiff Lee's doorbell and "harassed" the plaintiff (id. at 3.1).
On April 24, 2015, defendant Deo "struck plaintiff and committed assault and battery in the hallway" (id. at 3.2).
On April 25, 2015, plaintiff Lee was "accosted by defendant Deo" and defendant Deo "struck plaintiffs right arm" (id. at 3.4).
On August 5, 2015, defendant Deo "pushed her carriage into plaintiffs person and spat on plaintiff' (id. at 3.5).
On December 15, 2015, plaintiff Lee was "kicked" by a member of defendant Deo's household (id. at 3.7)
On March 10, 2017, defendant Deo "blocked the elevator from plaintiffs use" (id. at 3.8).
On May 20, 2016, defendant Deo "harassed" the plaintiff and "prevented plaintiff from traversing" the street parking lot (id. at 3.11).
On or about May 24, 2016, defendant Deo's household members "banged their door" and were "engaged in loud and boisterous, yelling and screaming" (id. at 3.12).
On June 1, 2016, defendant Deo "permitted her children to yell and scream and play in the hallway ... which interfered with plaintiff s sleeping" (id. at 3.13).
Between December 6, 2016 and March 13, 2017, defendant Deo "harassed plaintiff by placing wet personal items ... in front of plaintiffs doorway" (id. at 3.17).
On September 21, 2018, "while at the parking lot of Bay Terrace Shopping Mall, defendant Deo's household member was driving in front of plaintiffs vehicle and ... that vehicle intentionally engaged in sudden braking and forced plaintiff to brake suddenly so as to avoid an intended collision" (id. at 3.19).
Plaintiff Lee alleges to have reported each of the above matters, as well as additional matters, to Bell Apartment defendants and claims Bell Apartment defendants "failed to take any action." (Id. at 3.20).
Defendant Deo now moves for summary judgment, pursuant to CPLR 3212, on plaintiff Lee's first and second causes of action, as well as to dismiss plaintiff Lee's complaint, pursuant to CPLR 3216, for want of prosecution and for failing to file a note of issue and certificate of readiness, within 90 days after service of a 90-day demand for resumption of prosecution; Bell Apartment defendants cross-moves for summary judgment in their favor as to plaintiff Lee's first, second, third and fourth causes of action, pursuant to CPLR 3212, as well as to dismiss plaintiff Lee's complaint, pursuant to CPLR 3126, for want of prosecution and for failing to file a Note of Issue and Certificate of Readiness, within 90 days after service of a 90-day demand for resumption of prosecution for failure to timely file a Note of Issue. Plaintiff Lee opposes both defendant Deo's motion and Bell Apartment defendants cross-motion.
CPLR 3216Defendant Deo and Bell Apartment defendants seek to dismiss plaintiff's complaint, pursuant to CPLR 3216, and submit evidence demonstrating that defendant Deo served the plaintiff with the requisite 90-day Notice to Resume Prosecution, on December 1, 2022, and Bell Apartment defendants served the plaintiff with the requisite 90-day Notice, on December 14, 2022. It is undisputed that the plaintiff did not file a Note of Issue until August 7, 2023, more than 90-days after service of the defendants' CPLR 3216 Notices.
CPLR 3216 is an "extremely forgiving" statute (Baczkowski v Collins Constr. Co., 89 N.Y.2d 499 [1997]), which "never requires, but merely authorizes, the Supreme Court to dismiss a plaintiffs action based on the plaintiffs unreasonable neglect to proceed" (Davis v Goodsell, 6 A.D.3d 382 [2d Dept 2004]; see Kadyimov v Mackinnon, 82 A.D.3d 938 [2d Dept 2011]). Under the plain language of CPLR 3216, a court retains some "residual discretion" to deny a motion to dismiss, even when a plaintiff fails to comply with the 90-day requirement and additionally fails to proffer an adequate excuse for the delay or a potentially meritorious cause of action (Baczkowski v Collins Constr. Co., 89 N.Y.2d at 504).
Here, the record demonstrates affirmative steps taken by the plaintiff to continue the prosecution of this action, including the filing of a Note of Issue, that are inconsistent with an intent to abandon it. Thus, defendant Deo and Bell Apartments defendants' motion to dismiss plaintiffs complaint, pursuant to CPLR 3216, is denied.
CPLR 3212A proponent for summary judgment must make a prima facie showing of entitlement to summary judgment through the submission of sufficient evidence to demonstrate the absence of any material issues of fact (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 24 [1986]). Once the movant establishes prima facie entitlement to summary judgment, it is incumbent upon the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of triable issues of fact (see Zuckerman v City of New York, 49 N.Y.2d 557, 63 [1980]). Summary judgment is "a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues" (Andre v Pomeroy, 35 N.Y.2d 361, 364 [1974]).
Plaintiffs First Cause of Action for Negligence
Defendant Deo moves for summary judgment on plaintiff Lee's first cause of action, contending that plaintiff Lee's allegations constitute assault and battery and therefore, plaintiffs complaint is barred by CPLR 215 [3], which provides the statute of limitations is one year for actions to recover damages for assault and battery.
"In determining which limitations period is applicable to a given cause of action, the court must look to the substance of the allegations rather than to the characterization of those allegations by the parties" (McDonald v Riccuiti, 126 A.D.3d 954 [2d Dept 2015]; see Potter v Zucker Hillside Hosp., 176 A.D.3d 884 [2d Dept 2019]). Allegations of intentional conduct cannot form the basis of a negligence cause of action (see McDonald v Riccuiti, 126 A.D.3d at 954; Santana v Leith, 117 A.D.3d 711 [2d Dept 2014]).
Plaintiff Lee contends that, on April 24, 2015, April 25, 2015, August 5, 2015 and December 15, 2016, defendant Deo or members of defendant Deo's household, "struck", "accosted, pushed, spaton and/or kicked plaintiff Lee, all of which are intentional acts. The only inference that may be drawn from the evidence and plaintiff Lee's allegations is that plaintiff Lee's alleged injuries resulted solely from the defendant Deo's intentional acts. Even if defendant Deo lacked any intent to make physical contact with, or otherwise injure plaintiff Lee, the conduct attributed to defendant Deo constituted intentional, rather than negligent, conduct, (see Chiesa v McGregor, 209 A.D.3d 963 [2d Dept 2022]; Borrerro v Haks Group, Inc., 165 A.D.3d 1216, [2d Dept 2018]).
Under these circumstances, plaintiff Lee cannot avoid the running of the statute of limitations by couching her cause of action as sounding in negligence (see Trayvilla v Japan Airlines, 178 A.D.3d 746 [2d Dept 2019]; McDonald v Riccuiti, 126 A.D.3d at 955).
As plaintiff Lee did not file a summons and complaint until August 1, 2018, more than one year after the complained of actions of April 24, 2015, April 25, 2015, August 5, 2015 and December 15, 2016, defendant Deo has established that the plaintiff's claims for the allegations are barred by the statute of limitations. (CPLR 215[3]).
With respect to plaintiff Lee's allegations concerning the events that occurred, on March 23, 2015; May 20, 2015 and between December 6, 2016 and March 13, 2017, plaintiff Lee contends defendant Deo or members of defendant Deo's household "harassed" the plaintiff. "New York does not recognize a common-law cause of action to recover damages for harassment" (Shahid v City of New York, 144 A.D.3d 1127 [2d Dept 2016], quoting, Adeniran v State of New York, 106 A.D.3d 844, [2d Dept 2013] [internal quotation marks omitted]; see Wells v Town of Lenox, 110 A.D.3d 1192, [2d Dept 2013]). As such, defendant Deo is entitled to summary judgment on said claims.
Additionally, defendant Deo has established prima facie entitlement to summary judgment on the plaintiffs contention regarding the purported incident, that occurred on September 24, 2018, in which plaintiff Lee alleges an incident involving a member of defendant Deo's household off the premises of the Bell Apartments.
In any common-law negligence case brought pursuant to New York law, "a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff; (2) a breach thereof; and (3) injury proximately resulting therefrom" (Solomon v City of New York, 66N.Y.2d 1026 [1985]).
It is well established that "[a] defendant generally has no duty to control the conduct of third persons so as to prevent them from harming others, even where as a practical matter [a] defendant can exercise such control" (D'Amico v Christie, 71 N.Y.2d 76 [1987]; see Hamilton v Beretta U.S.A. Corp., 96 N.Y.2d 222 [2001]). As plaintiff Lee's allegations concern a member of Deo's household, and not defendant Deo personally, plaintiff Lee has failed to demonstrate that defendant Deo owed a duty to the plaintiff, a necessary element of a negligence claim.
Defendant Deo has also established prima facie entitlement to summary judgment on the plaintiffs remaining allegations by demonstrating that the plaintiff did not sustain any injury resulting from the alleged conduct of defendant Deo, a necessary element of a negligence claim, (see Solomon v City of New York, 66 N.Y.2d 1026 [1985]).
In opposition, the plaintiffs evidence and testimony fails to raise any triable issues of fact.
Bell Apartment defendants have also established their prima facie entitlement to summary judgment on plaintiff Lee's negligence claim. A landlord has no duty to prevent one tenant from attacking another tenant unless it has the authority, ability, and opportunity to control the actions of the assailant (see Adelstein v Waterview Towers, 250 A.D.2d 790 [2d Dept 1998]; Siino v Reices, 216 A.D.2d 552 [2d Dept 1995]; Blatt v New York City Hous. Auth., 123 A.D.2d 591 [2d Dept 1986]).
Here, "the pattern of harassment alleged by the plaintiff, arose from a purely personal dispute between the two individuals" (Blatt v New York City Hous. Auth., 123 A.D.2d 591 [2d Dept 1986] [citations omitted; internal quotation marks omitted]) and plaintiff Lee has failed to raise an issue of fact demonstrating that Bell Apartment defendants had the authority, ability and opportunity to control the actions of defendant Deo.
Plaintiffs Second Cause of Action for Infliction of Emotional Distress
The elements of a cause of action for intentional infliction of emotional distress are "(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress" (Chanko v Am. Broad. Companies Inc., 27 N.Y.3d46 [2016], quoting Howell v New York Post Co., 81 N.Y.2d 115 [1993]). To be sufficiently outrageous, the alleged conduct must go "beyond all possible bounds of decency" and be "utterly intolerable in a civilized community." (Marmelstein v Kehillat New Hempstead, 11 N.Y.3d 15 [2008], quoting Murphy v Am. Home Prod. Corp., 58 N.Y.2d 293 [1983]; see also Chanko, 27 N.Y.3d at 57, quoting Howell, 81 N.Y.2d at 122 [standard for outrageousness so strict that of every claim considered by Court of Appeals, each has failed]). The element of outrageous conduct, moreover, "serves the dual function of filtering out petty and trivial complaints that do not belong in court, and assuring that plaintiffs claim of severe emotional distress is genuine." Howell v New York Post Co., 81 N.Y.2d at 121; 164 Mulberry St. Corp, v Columbia Univ., 4 A.D.3d 49 [1st Dept 2004] [conduct must consist of more than mere insults, indignities, and annoyances]).
Defendant Deo and Bell Apartments defendants have established that their conduct herein was not "so outrageous in character, and so extreme in degree" as to qualify as intentional infliction of emotional distress (see Murphy v Am. Home Prods. Corp., 58 N.Y.2d 293 [1983]; Borawski v Abulafia, 117 A.D.3d 662 [2d Dept 2014]; Klein v Metropolitan Child Servs., Inc., 100 A.D.3d 708 [2d Dept 2012]).
In opposition, plaintiff Lee's evidence and testimony fails to raise any triable issues of fact.
A cause of action to recover damages for negligent infliction of emotional distress generally requires a plaintiff to show a breach of a duty owed to him [or her] which unreasonably endangered his [or her] physical safety, or caused him [or her] to fear for his [or her] own safety'" (Chiesa v McGregor, 209 A.D.3d at 966, quoting Borrerro v Haks Group, Inc., 165 A.D.3d at 1219. A cause of action for negligent infliction of emotion distress, sounding in negligence, includes the elements of a defined duty, a breach of that duty, and proximate causality between the breach and plaintiffs injuries (see Ornstein v New York City Health & Hosps. Corp., 10 N.Y.3d 1 [2008]; Taggart v Costabile, 131 A.D.3d 243 [2d Dept 2015]). "By requiring a direct link between the mental injury and the defendant's negligence, and by mandating some guarantee of the genuineness of the emotional injury, the Court of Appeals has recognized a standard that is effective to filter out petty and trivial complaints and to ensure that the alleged emotional distress is real." Taggart v. Costabile, 131 A.D.3d at 253.
Defendant Deo contends that this cause of action must be dismissed because the plaintiffs claim is based upon the allegations that defendant Deo committed intentional torts against the plaintiff. Where the allegations in the complaint allege intentional conduct and not negligence a claim for negligent infliction of emotional distress can not survive. See Santana v Leith, 117 A.D.3d 711 [2d Dept 2014], In opposition, the plaintiffs evidence and testimony fails to raise any triable issues of fact.
Bell Apartment defendants have, through the evidence presented, including plaintiffs own testimony and pleadings, demonstrated that plaintiff Lee has failed to satisfy either of the Court of Appeals-determined requirements for a "guarantee of genuineness" herein (see Taggart v Costabile, 131 A.D.3d at 253). Thus, Bell Apartment defendants have established prima facie entitlement to summary judgment.
In opposition, plaintiff Lee has failed to raise an issue of fact. The record establishes that the plaintiff has neither meaningfully opposed nor addressed the defendants' cited case-law authorities and arguments relating to this theory of recovery. McNamee Constr. Corp, v City of New Rochelle, 29 A.D.3d 544 [2d Dept 2006].
Breach of Coop Agreement and Related Instruments
Plaintiff Lee alleges that defendant Deo and Bell Apartments defendants violated the Coop Agreement and Related Instruments, including "House Rules" of Bell Apartment Coop Association. A board violation of bylaws is "akin to a breach of contract." (Pomerance v McGrath, 124 A.D.3d 481 [1st Dept 2015]).
The essential elements of a breach of contract claim are (1) the existence of a contract; (2) the plaintiff's performance pursuant to the contract; (3) a defendant's breach of his or her contractual obligations; and (4) damages resulting from the breach. Dee v. Rakower, 112 A.D.3d 204 [2d Dept. 2013].
Bell Apartment defendants contend that Bell Apartment defendants are entitled to summary judgment, based on the business judgment rule, which prohibits judicial inquiry into the actions of the board. It is well settled that the business judgment rule protects the actions of a board of directors of a cooperative corporation so long as the board acts for the purposes of the cooperative, within the scope of its authority, and in good faith (see Matter of Levandusky v One Fifth Ave. Apt. Corp., 75 N.Y.2d 530 [1990]).
"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" 1812 Quentin Rd., LLC v 1812 Quentin Rd. Condominium Ltd., 94 A.D.3d 1070 [2d Dept 2012],
Here, a review of the record reveals the existence of a proprietary lease, bylaws and Bell Apartment Owners Corporation House Rules. However, neither Bell Apartment defendants nor the plaintiff, submit as evidence in the parties respective motion papers, a copy of the documents, including the bylaws outlining and defining the respective rights and obligations of the parties, to determine whether the board acted within the scope of its authority, a necessary threshold inquiry.
Therefore, Bell Apartments defendants have failed to establish a prima facie entitlement to summary judgment on plaintiff Lee's claim of breach of coop agreement and related documents. "Since the defendant failed to meet its initial burden, it is not necessary to consider the sufficiency of the papers submitted in opposition" (Tingling v C.I.N.H.R., Inc., 120 A.D.3d 570 [2d Dept 2014]).
Breach of Fiduciary Duty
" '[T]he elements of a cause of action to recover damages for breach of fiduciary duty are (1) the existence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damages directly caused by the defendants misconduct'" Mann v Sasson, 186 A.D.3d 823 [2d Dept 2020], citing Palmetto Partners, L.P. v AJW Qualified Partners, LLC, 83 A.D.3d 804 [2d Dept 2011], quoting Rut v Young Adult Inst., Inc., 74 A.D.3d 776 [2d Dept 2010]).
The allegations of breach of fiduciary duty made against defendants Board of Directors of Bell Apartments Coop Association, Bell Apartments Coop Association and Metro Management must be dismissed because corporations do not owe a fiduciary duty to its shareholders (see Peacock v Herald Sq. Loft Corp., 67 A.D.3d 442 [1st Dept 2009]).
Defendant David Barron has established prima facie entitlement to summary judgment on the plaintiffs claim of breach of fiduciary duty. Plaintiff Lee fails to raise any triable issues of fact. Plaintiff Lee's complaint does not specifically allege, and there is no record evidence of individual defendant David Barron's participation in the board's allegedly wrongful conduct or bad faith motive. As such, the breach of fiduciary duty cannot be sustained against the individual defendant, David Barron, (see Tucciarone v Hamlet on Oide Oyster Bay Homeowners Assn., Inc., 154 A.D.3d 898 [2d Dept 2017]).
Accordingly, it is
ORDERED that the branch of defendant Sheetal Sanmeet Deo's motion seeking dismissal of plaintiffs complaint is denied; and it is further
ORDERED that the branch of defendants Metro Management, David Barron, Board of Directors of Bell Apartments Coop Association and Bell Apartments Coop Association's cross-motion seeking dismissal of plaintiffs complaint is denied; and it is further
ORDERED that the branch of defendant Sheetal Sanmeet Deo's motion seeking summary judgment, dismissing plaintiffs first cause of action for negligence, is granted; and it is further
ORDERED that the branch of defendant Sheetal Sanmeet Deo's motion seeking summary judgment, dismissing plaintiffs second cause of action for infliction of emotional distress, is granted; and it is further
ORDERED that the branch of defendants Metro Management, David Barron, Board of Directors of Bell Apartments Coop Association, and Bell Apartments Coop Association's cross-motion seeking summary judgment, dismissing plaintiffs first cause of action for negligence is granted; and it is further
ORDERED that the branch of defendants Metro Management, David Barron, Board of Directors of Bell Apartments Coop Association, and Bell Apartments Coop Association's cross-motion seeking summary judgment, dismissing plaintiff's second cause of action for infliction of emotional distress is granted; and it is further
ORDERED that the branch of defendants Metro Management, David Barron, Board of Directors of Bell Apartments Coop Association, and Bell Apartments Coop Association's cross-motion seeking summary judgment, dismissing plaintiff's third cause of action for breach of coop agreement and related documents, is denied; and it is further
ORDERED that the branch or defendants Metro Management, David Barron, Board of Directors of Bell Apartments Coop Association, and Bell Apartments Coop Association's cross-motion seeking summary judgment, dismissing plaintiff's fourth cause of action for breach of fiduciary duty is granted.