Opinion
Index No. 152964/2023 Motion Seq. No. 001
01-25-2024
ELLIOT MEISENBERG, Plaintiff, v. SKY HOUSE CONDOMINIUM, RESIDENTIAL BOARD OF MANAGERS OF SKY HOUSE CONDOMINIUM, RICHARD CHALMERS, STEPHEN AHN, RICHARD NOTTENBERG, JOSHUA SPIEGEL, OREN SHAPIRO, SEQUOIA PROPERTY MANAGEMENT, CORP. Defendant.
Unpublished Opinion
MOTION DATE 08/07/2023
DECISION+ ORDER ON MOTION
HON. LYLE E. FRANK, Justice
The following e-filed documents, listed by NYSCEF document number (Motion 001) 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 were read on this motion to/for _DISMISS. Upon the foregoing documents, the motion to dismiss is granted in part.
This matter arises out of plaintiff s requests for renovations to his dwelling units and defendants' denials of that work allegedly in bad faith.
Standard of Review
When considering a motion to dismiss based upon CPLR § 3211(a)(7), the court must accept the alleged facts as true, accord the plaintiff the benefit of every possible favorable inference, and determine whether the facts alleged fit into any cognizable legal theory. Leon v. Martinez, 84 N.Y.2d 83 [1994], On a motion to dismiss the court "merely examines the adequacy of the pleadings", the court "accept as true each and every allegation made by plaintiff and limit our inquiry to the legal sufficiency of plaintiff s claim." Davis v Boeheim, 24 N.Y.3d 262, 268
Under CPLR Rule 3211(a)(1) documentary evidence provides a basis for dismissing a cause of action "where the documentary evidence utterly refutes plaintiffs factual allegations, conclusively establishing a defense as a matter of law." Goshen v Mutual Life Ins. Co. of NY, 98 N.Y.2d314, 326 [2002], Discussion
First, the Court notes that the plaintiff has conceded that there is no viable breach of fiduciary duty cause of action as against defendants Sky House Condominium, Oren Shapiro, and Sequoia Property Management Corp., as none of these entities had a fiduciary duty to the plaintiff. As such, the first cause of action will be dismissed as to these defendants.
As to the remainder of the complaint, the Court finds that it has been adequately pled, and the defendants have failed to provide documentary evidence to conclude that the matter should be dismissed.
The Court notes that there is much evidence that if true, could be found to be in bad faith. First, there are the past acrimonious dealings between the plaintiff and his fellow Board members. There are also the time frames within which the purported review of the plaintiff s plans took, and the apparent vague and conclusory nature plaintiff s plans were turned down, even after he made changes to his original plans. For these reasons, and giving the plaintiff every favorable inference, the Court agrees with plaintiff that at this stage of the litigation, based on the allegations, the plaintiff s complaint should survive.
Additionally, and where the Court finds that bad faith has been adequately pled, the Court declines to dismiss the request for punitive damages at this stage of the litigation. The Court also finds that the request for declaratory judgment may proceed, should the plaintiff prevail in this action, the plaintiff could be awarded monetary damages, but could also seek a declaration regarding the work he has proposed to do. This is not an instance of where the plaintiff is seeking a preliminary injunction, where the defendants' argument would be more appropriate.
The Court also finds that the business judgment rule does not require dismissal at this point. While the letters indicate that the Board relied on certain professionals in a vague and conclusory fashion, there are no affidavits of any of the professionals, nor are there any of the reports of the professionals relied on annexed to the plaintiff's moving papers. As such, where at this point, all inferences go to the non-moving party, and as the Court has found the allegations of bad faith have been appropriately pled, the documentary evidence does not conclusively establish that the business judgment rule applies such that dismissal at this stage of the litigation is warranted.
The Court, however, does find that the matter should be dismissed as against the individual Board members. The Court agrees the decisions made here were made by the Board as a whole, and while the Court finds that plaintiff adequately alleges that the complaint makes out bad faith by the Board, there are no specific allegations about actions on inactions of specific Board member during the occurrences that plaintiff is seeking redress for.
The Court does not find that at this stage of the litigation, the second cause of action should be dismissed. The complaint is rife with actions or inactions that defendant Shapiro and thus Sequoia Management were very much involved with the plaintiff s applications, and that much of the delays they were involved with. Thus, at this stage of the litigation, and giving the plaintiff every possible inference, the Court declines to dismiss the second cause of action.
Finally, it does not appear to be in dispute that attorney's fees are not available in this action. It is therefore
ORDERED that the complaint is dismissed in its entirety as against defendants Richard Chalmers, Stephen Ahn, Richard Nottenberg, Joshua Spiegel, and Sky House Condominium; and it is further
ORDERED that the Clerk of the Court is directed to enter judgment accordingly in favor of said defendants; and it is further ORDERED that the action is severed and continued against the remaining defendants; and it is further
ORDERED that the caption be amended to reflect the dismissal and that all future papers filed with the court bear the amended caption; and it is further
ORDERED that counsel for the moving party shall serve a copy of this order with notice of entry upon the Clerk of the Court and the Clerk of the General Clerk's Office, who are directed to mark the court's records to reflect the change in the caption herein; and it is further
ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website); and it is further
ORDERED that the first cause of action is dismissed as against defendants Oren Shapiro and Sequoia Property Management Corp.; and it is further
ORDERED that the portion of the complaint that seeks attorney's fees is dismissed; and it is further
ADJUDGED that the motion is otherwise denied.