Opinion
0104580/2007.
July 30, 2007.
Petitioner owns a residential unit in the Central Park Place Condominium (the "Condominium"), located at 301 West 57th Street in Manhattan. This proceeding seeks to vacate the results of the December 11, 2006 election of the Board of Managers of the Central Park Place Condominium (the "Board of Managers") and to compel the Board of Managers to hold a new election. By this application, petitioner seeks an order pursuant to CPLR 6301 and 6313 prohibiting respondents, individually and/or collectively, from performing any duties as a board member of The Hoard of Managers of the Central Park Place Condominium other than (1) ensuring the collection of common charges; (2) paying the regularly recurring bills of the Condominium and (3) addressing any emergency situations which pose an immediate threat to the property Respondents Board of Managers, Gabriella Garzoni, Walter Goldstein, Kosacu Horiwaki, Jens Winther (a/k/a Jorgenson), Hooman Mehran, Chandranath Sen, and Moyna Singh cross-move for an order (1) dismissing the petition pursuant to CPLR 3211 for both lack of jurisdiction and failure to state a cause of action; (2) dismissing the petition as to the individually named members of the Board; (3) disqualifying the firm of Braverman Associates as counsel for petitioner; and (4) dismissing petitioner's claim for attorneys fees.
Background
In November, 2006, Halstead Property Management "Halstead" the managing agent for the Condominium, mailed and delivered a notice of the 2006 Annual Meeting (the "notice"). The notice announced that the annual meeting of the residential unit, owners of the Condominium and election of members of the Board of Managers would take place on December 11, 2006 (Notice of Petition Exhibit. 3). The Notice of the Annual Meeting advised the unit owners to attend in person, but provided a proxy printed on gold-colored paper (the "gold proxy") to be completed and returned in the event that an owner could not attend. With respect to the gold proxy, the Notice included the following language:
You are urged to attend the meeting in person. However, if you cannot attend, please complete the enclosed form of the gold proxy and leave it with the Condominium's concierge or mail to the managing agent. If you do not insert a name in the blank space, appointing someone as your proxy, it will he deemed giver to the Secretary to cast as a majority of the Board directs. If you complete a proxy but attend the meeting and wish to vote, your proxy will be canceled and returned to you
(Petition Exhibit 3).
the gold proxy form, however, reads as follows:
KNOW ALL PERSONS BY THESE PRESENTS: I (we) hereby appoint CPF Board Secretary Dr. Chandranath Sen with full power of substitution to represent me (us) at the Annual Meeting of Residential Unit Owners of the Central Park Place Candominium on December 11, 2006 or at any adjournments thereof and to vote my (our) percentage of interest in his absolute discretion with respect to the election of the Residential Board of Managers, and upon such other matters as nay come before the meeting I (we) hereby revoke any and all previous proxies, and ratify and confirm all the said attorney, agent and proxy of his (her) substitutions may do by virtue thereof.
(Petition Exhibit 3).
On November 8, 2006, Condominium Owner Rosemary Bodner advised Halstead in writing that she was seeking election to the Board of Managers with six other candidates, Sean Fitch, Walter Goldstein, Deborah Hoffman, Kosaku Horiwaki, Norman Steele and Daniel Wolf us (the "Green Slate"). The Green Slate of candidates printed its proxies on green-colored paper (the "green proxy"), giving voting power to Ms. Bodner and directing her to vote solely for the Green Slate candidates. The Gold Slate candidates (denoted because the proxy supporting this slate was printed on gold colored paper) was comprised of Board of Manager incumbents Jens Wither (a/k/a Jens Jorgenson), Hooman Mehran, Geoffrey Schwartz, Chandranath Sen, and Monya Singh, as well as non-incumbents Mo/s/i Bashan and Gabriella Garzoni (the "Gold Slate Candidates".
On December 11, 2006, the Board held its Annual Meeting and Election. On December 13, 2006, the ballots and proxies were reviewed and counted. Petitioner claims that, challenges were raised as to the validity of certain Election documents. These documents were separated from the rest, of the documents and the objections were noted by the Condominium's accountants. Petitioner further claims that the challenged Election documents and objections were to have been reviewed by the Condominium's attorney, David Fingerhut, prior to certification of the election results (Order to Show Cause, p. 10; Affidavit of Helen Anne Rella, ¶¶ 12-16). Petitioner claims that the Election results were certified without Mr. Fingerhut's review of the challenged documents and objections, and the new Board of Managers was announced on December 15, 2006
Petitioner, by order to show cause dated April 3, 2007, commenced this Article 78 special proceeding claiming that the December election was tainted by (1) improper intervention and involvement, by Halstead at the cost of the Condominium unit, owners; (2) lack of controls during the election to ensure a fair and accurate voting result; and (3) the counting of fraudulent, proxies which petitioner argues would have changed the result of the election
Discussion
As a preliminary matter this court first addresses the jurisdictional challenge maintained by respondents, as if found valid, would obviate the need for inquiry into the balance of the application.
This application, brought by order to show cause, seeks a preliminary injunction pursuant to 6301 and 6313 preventing the board of Managers from doing anything other than collecting common charges, paying bills, and addressing emergency situations which may arise. There is nothing in the Order to Show Cause which indicates that petitioner was seeking leave to commence an Article 78 proceeding in lieu of service of a Notice of Petition. Therefore, in order to commence the Article 78 proceeding, petitioner was required to file and serve the Notice of Petition and petitioner in the same manner as a summons in an action" (CPLR 4030), i.e. by personal service.
Petitioner never independently served respondents with the Notice of Petition and Petition prior to service of the Order to Show Cause Rather, respondents were first presented with the Notice of Petition and Petition with the service of the Order to Show Causes. However, while service of the Order to Show Cause was made in accordance with this court's directive,2 it did not obviate the service requirement for commencement of a Special Proceeding under Article 4, and more particularly. Article 3, of the CPLR (see, CPTR 308, 311; see generally, Barr, Altman Lipshic and Gerstman New York Civil Practice Before Trial, § 42:82 [James Publishing 2007] Service of the Notice of Petition and Petition was therefore defective as to all of the respondents. Inasmuch as this court lacks jurisdiction over these parties, it needs not address the balance of the issues raised in either the application or the Petition.
Accordingly, it is
ADJUDGED that petitioner's application is denied; and it is further
ADJUDGED that this matter is dismissed.
The new Hoard of Managers was comprised of Gold Slate Members, Gabriella Garzoni, Jens Winther (a/k/a Jens Jorgenson), Hooman Mehran, Chandranath Sen, Moyna Singh, and Green Slate Members Walter Goldstein and Kosaku Horiwaki.