Opinion
No. 6863/2006.
2010-12-23
Maryellen WARD, Plaintiff, v. The BEACON HILL BUNGALOW CORPORATION, et al., Defendants.
Joseph J. Sciacca, Esq., Washington, for the Plaintiffs. Farrell Fritz, P.C., by John P. McEntee and Michael A.H. Schoenberg, Esqs., Uniondale, for the Defendants.
Joseph J. Sciacca, Esq., Washington, for the Plaintiffs. Farrell Fritz, P.C., by John P. McEntee and Michael A.H. Schoenberg, Esqs., Uniondale, for the Defendants.
CHARLES J. MARKEY, J.
The entire action centers on whether plaintiff Maryellen Ward's (“Ward') new structure in Beacon Hill Bungalow Colony, owned by defendant Beacon Hill Bungalow Corporation (“Beacon Hill”), was unlawful. Beacon Hill's and the other individually named defendants' counsel contends that Ward: (1) failed to comply with the zoning regulations of the Town of North Hempstead, despite the fact that Ward agreed in writing to comply with all applicable laws, rules, and regulations in connection with her construction, and (2) ignored known restrictions on the unit's height and location.
Beacon Hill contends that Ward has enhanced her views, with her new structure, in a way that has an adverse impact of her immediate neighbors' views of Hempstead Harbor, in Long Island, New York.
Ward has urged that her new structure was built in full compliance with plans and specifications that the defendants and their architect, Donald Alberto, had approved. Ward also argues that her building permit application was submitted to and approved by the Town of North Hempstead. The defendants issued a “stop work” order that put an end to the construction of plaintiff's new structure at Beacon Hill.
Ward's complaint asserted 14 causes of action. The first cause of action was for breach of contract; the second cause of action was for consequential damages that flowed as a result of the alleged breach of contract; the third cause of action was for plaintiff to recoup her carrying charges; the fourth cause of action was for damages that occurred by plaintiff being forced to rent another residence; the fifth cause of action was for architectural fees incurred by the plaintiff; the sixth cause of action was for storage expenses; the seventh cause of action was for the cost of replacement work; the eighth cause of action was for damages occasioned by the unreasonable actions of the Board of Directors of Beacon Hill in issuing the “stop work” order; the ninth cause of action seeks damages sounding in promissory estoppel; the tenth cause of action seeks a permanent injunction against the defendants from issuing future “stop work” orders; the eleventh cause of action seeks damages against individual Board members for alleged misrepresentations; the twelfth cause of action seeks an order directing that the defendants file the appropriate variance applications with the Town of North Hempstead so that Ward can complete her construction; the thirteenth cause of action seeks the return of a $5,000.00 security deposit; and, finally, the fourteenth cause of action seeks damages for malicious actions by the Board of favoritism to other unit owners at Beacon Hill that Ward contends entitles her to punitive damages.
The Court conducted a bench trial of this vigorously contested action on numerous dates extending from February 2, 2009 through August 4, 2010. The Court, in reaching this decision, has reviewed and considered the trial transcripts, the written summaries of counsel that were presented, in briefs dated September, 2010, and the substantial amount of exhibits. Earlier in this litigation, the Court also asked counsel to prepare written briefs on the issue of damages, and the Court has also considered those earlier submissions.
The Court finds the testimony of the plaintiff and the witnesses on her behalf to be credible. Having considered all the testimony, exhibits, and briefs, the Court awards judgment for plaintiff on most of her claims. The Court dismisses the tenth, eleventh, and fourteenth causes of action of the complaint.
With regard to the tenth cause of action, Ward is not entitled to a permanent injunction prohibiting the Board from issuing, in the future, other “stop work” orders. It is obvious that Ward's request for relief is far too encompassing since it is conceivable that a legitimate and justifiable cause for the issuance of a “stop work” order may arise in the future. This Court, therefore, will not issue a prohibition or a permanent injunction against the issuance of all “stop work” orders.
The eleventh cause of action, regarding misrepresentations by individual Board members of Beacon Hill, is not supported by the facts adduced at the lengthy bench trial.
The Court dismisses plaintiff's demand for punitive damages, in the fourteenth cause of action, as wholly unjustified factually or legally. The Court does not find that the defendants acted with either malice or bad faith.
The Court awards judgment to the plaintiff on all other causes of action.
The Court finds that the plaintiff proceeded properly with the construction of her new structure and was wrongfully given a hard time by Beacon Hill that relentlessly asked for additional and groundless changes and concessions.
The Court does not agree with the defendants' position that the business judgment rule insulates them from liability under the facts of the present case. See, Board of Managers of Village View Condominium v. Forman, 78 A.D.3d 627, 911 N.Y.S.2d 378, 2010 WL 4368431, 2010 N.Y. Slip Op 07877 [2nd Dept.2010]; Yusin v. Saddle Lakes Home Owners Ass'n, Inc., 73 A.D.3d 1168, 902 N.Y.S.2d 139 [2nd Dept.2010]; Anderson v. Nottingham Village Homeowner's Ass'n, Inc., 37 A.D.3d 1195, 830 N.Y.S.2d 882,amended on other grounds on reargument, 41 A.D.3d 1324, 840 N.Y.S.2d 880 [4th Dept.2007]; accord, Hidden Harbour Estates, Inc. v. Bass, 393 So.2d 637 [Fla.App.1981]; Davilas v. Bader, 2007 WL 6954310 [Mass.Super. Ct.2007].
The Court also disagrees with the defendants' contention that some of plaintiff's claims for damages are duplicative. The plaintiff seeks to recover all the costs and expenses that she incurred in paying for alternative housing as a result of the defendants' “stop work” order [Trial Exhibit 19] and also seeks to recover the amounts that Ward paid to Beacon Hill, consisting of maintenance fees and proportionate taxes, following the issuance of the “stop work” order. The defendants vigorously contend that plaintiff is “double dipping,” i.e., trying to get overlapping or identical amounts of damages.
This Court's independent legal research has not uncovered a case on point. The first step in resolving the issue is to recognize that while certain causes of action and claims for damages may be similar, that does not constitute a barred form of duplicative damages. As the Appellate Division, Second Judicial Department, recently analyzed in Corsello v. Verizon New York, 77 A.D.3d 344 [2010], a court must discern the underpinnings of the claims asserted and the relief demanded.
Turning to the facts of the case at bar, the defendants' actions placed plaintiff in the unenviable position of denying her the fruits of her real property that she testified had real financial and emotional significance to her. By the “stop work” order, wrongfully issued by the defendants, Ward was constrained to live not at the Beacon Hill Bungalow Colony, but at some other accommodations.
Plaintiffs' demand to recover also for her loss of “use and enjoyment” of her home at Beacon Hill that she could not live in or rent out is a theoretically distinct concept and cause of action. In addition, the concept of “use and enjoyment” is very embracing and encompassing, depending on what rights have been infringed. See generally, Antolovich v. Brown Group Retail, Inc., 183 P.3d 582 [Colo.App.2007]; Miller v. Carnation Corp., 39 Colo.App. 1, 564 P.2d 127 [Colo.App.1977]; Coty v. Ramsey Assocs., Inc., 149 Vt. 451, 546 A.2d 196 [1988].
An excellent, recent treatise that is helpful to the analysis is Encyclopedia of New York Causes of Action: Elements and Defenses [2nd ed. 2010 New York Law Journal Practice series] by Ernest Edward Badway, Esq. This Court's study of the concepts and causes of action of “money had and received” and “loss of use and enjoyment” discussed in Badway's treatise discloses that the two claims are thoroughly distinct. Accord, Louis A. Kass, Necessary Elements of Common Legal Actions [Gould Publications 1978].
Indeed, it would be anomalous to let Beacon Hill collect all the rents Ward had paid over the years while she had no use of her structure, was forced to find and live in another accommodation, and pay all sorts of storage charges for her furniture and personalty—not by her choosing, and deprived of the use and enjoyment of her property.
The Court also finds that the award of counsel fees to plaintiff Ward is amply supported by Real Property Law section 234, since Ward has substantially prevailed in this action. See, H.M. Village Realty v. Caccavale, 5 A.D.3d 289, 290, 773 N.Y.S.2d 543 [1st Dept.2004]; 184 West 10th St. Corp. v. Marvits, 20 Misc.3d 134(A), 2010 WL 4668427, 2010 N.Y. Slip Op 51970[U] [App T 1st Dept.2010]; accord, Glenwood Mgt. Corp. v. Bicks, 2005 WL 3624075, slip op. at 12 [Ct.Super. Ct.2005].
The Court agrees with the computation of plaintiff's damages as expressed in her counsel's brief, putting aside that the computation of the total sum therein was incorrect. Specifically, the Court awards judgment to Ward the sum of $356,044.96, broken down as follows:
+-----------------------------------------------------------------------+ ¦Total rents paid to landlord ¦$87,910.00 ¦ +-----------------------------------------------------------+-----------¦ ¦Total of maintenance and other payments made to Beacon Hill¦$41,934 .45¦ +-----------------------------------------------------------+-----------¦ ¦Total of payments made to James Gilhooly, RA ¦$4,702.99 ¦ +-----------------------------------------------------------+-----------¦ ¦Total of payments made to plaintiff's counsel ¦$169,499.00¦ +-----------------------------------------------------------+-----------¦ ¦Construction escrow ¦$5,000.00 ¦ +-----------------------------------------------------------+-----------¦ ¦Cost to replace the exterior sheathing ¦$11,375.00 ¦ +-----------------------------------------------------------+-----------¦ ¦Increased construction costs ¦$14,572.00 ¦ +-----------------------------------------------------------+-----------¦ ¦Miscellaneous payments incurred by plaintiff ¦$21,051.52 ¦ +-----------------------------------------------------------+-----------¦ ¦Total of plaintiff's claim ¦$356,044.96¦ +-----------------------------------------------------------------------+
Trying to figure the award of interest to plaintiff is more complicated since the dates that the foregoing amounts were incurred are disparate and varied. CPLR 5001(a) provides, in pertinent part:
Interest shall be recovered upon a sum awarded because of ... an act or omission depriving or otherwise interfering with title to, or possession or enjoyment of, property, except that in an action of an equitable nature, interest and the rate and date from which it shall be computed shall be in the court's discretion.
Accord, Ernest Edward Badway Encyclopedia of New York Causes of Action: Elements and Defenses, section 7–3, at 72, supra. In the Court's discretion, interest on the sum of $356,044.96 awarded by the Court to the plaintiff is to be calculated from August 4, 2010. The Court also awards to Ward the costs and disbursements of the action.
Defense counsel's claim for legal fees is denied. There was no proof that the defendants incurred counsel fees, and defendants have not prevailed in this action.
The foregoing constitutes the decision and order of the Court.
Settle order and judgment on notice.