Board of Mgrs. of Holiday Villas Condominium I v Bautista

[*1] Board of Mgrs. of Holiday Villas Condominium I v Bautista 2005 NY Slip Op 50814(U) Decided on May 5, 2005 Civil Court, Richmond County Straniere, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 5, 2005
Civil Court, Richmond County

Board of Managers of Holiday Villas Condominium I, Plaintiff,

against

Ruel Bautista and Antoinette Bautista, Defendants.



040414/04

Philip S. Straniere, J.

Plaintiff, Board of Managers of Holiday Villas Condominium I, commenced this action against the defendants, Ruel Bautista and Antoinette Bautista, alleging that the defendants failed to pay common charges, fines and assessments levied against them. A trial was held on April 4, 2005. Both sides were represented by counsel.

Plaintiff's managing agent testified that the defendants are the owner of the premises 8 Lynn Court, Staten Island, New York and, as such, are members of the plaintiff condominium and subject to the by-laws, covenants and restrictions affecting that development and premises. As the unit owner, the defendant physically acquired title to the "area enclosed horizontally by the unexposed faces of the dry walls forming the exterior walls of the Unit and vertically by the upper face of the sub-floor of the Unit to the unexposed face of the dry wall forming the ceiling of the Unit" (Plan of Condominium Unit Ownership Article Third (b)). In other words, the defendant did not acquire any title to exterior portions of the unit, title to those areas remained with the condominium. Plaintiff alleges that the defendant installed a satellite dish on the patio in front of the premises without the consent of the condominium Board. It is conceded that the patio area is part of the common elements but is designated as a limited common element and assigned to the defendants by the terms of the covenants and restrictions filed when the condominium was formed (Declaration of Condominium Paragraph Fifth).

Plaintiff's witness, its managing agent, testified that in August 1999 the Board put into effect a "house rule" that permitted unit owners to install exterior antennas and satellite dishes on the common elements. Prior to that date all such installations were prohibited. The Board Rule included an "installation agreement"to be signed by the unit owner which specified, among [*2]other things, that the satellite dish could not be larger than 18 inches in diameter and must be installed on the upper roof of the building. Plaintiff's witness testified that in May 2001, while making an inspection of the property with members of the condominium Board, he observed a satellite dish on defendants' patio.

Defendant, Ruel Bautista, testified that he indeed has a satellite dish which he purchased and installed in 1997. The size of the dish was approximately 33 inches in diameter. He stated that he required a "dish" of that size in order to receive broadcasts from his native country, the Phillippines. Defendant asserted that in 1997 he contacted the condominium Board to request that the "dish" be placed on the roof. The condominium denied his application because they felt the "dish" was too big for the roof. Defendant does not have a copy of his written request in that regard nor the condominium's response. The current managing agent has no record of the correspondence either, as it was not representing the condominium at that time.

Plaintiff's witness testified that starting in June 2001, letters were sent to the defendants asking them to remove the satellite dish from the patio as it was in a common area and had not been approved by the condominium Board. Defendants ignored these requests and in December 2003 the Board began assessing a weekly penalty of $100.00. These fines have continued to be assessed and plaintiff contends that a total of $6,700.00 is due though March 31, 2005. In addition plaintiff is seeking to be reimbursed for attorney's fees incurred as permitted in the By-laws, Article III Section 5 (10) and House Rules Article VIII Section 23(d).

BACKGROUND:

A. Condominium Documents

Holiday Villas Condominium I was created pursuant to the plan of condominium offering filed by Holiday Villas, Inc., including 63 units located on 2.84 acres in Staten Island, New York. Plaintiff has submitted the offering plan for the sale of units in Holiday Villas Condominium II which included 37 units on 1.62 acres adjacent to Holiday Villas Condominium I. Plaintiff represents that the offering plans are identical in regard to all sections relevant to the issues in this case. The condominium was created pursuant to Real Property Law Article 9-B and the date of the first offering was August 1985. The Declaration of the Plan defines each unit, the common elements and the limited common elements. Paragraph Fifth of the Declaration of Plan defines the "Common Elements" and under a sub-heading states: Limited Common Elements. Certain portions of the common elements are limited in use to specified Unit Owners, subject to the right of the Board of Managers to enter upon any such limited area for maintenance, repair or improvement of a unit or common element and subject to the rules of the Board of Managers (see By-Laws, Article VII). Any portion of the common elements which is not limited in use may be used by any Unit Owner subject to rules and regulations promulgated by the Board of Managers. The common elements are not subject to partition nor are they severable from the Units except in accordance with the Real Property Law. Following are detailed descriptions of the limited common elements: 1. Each terrace or yard area shall be limited in use to the Unit Owner who has direct access to such terrace or yard.[*3]The document entitled Plan of Condominium Ownership in the section, "Improvements-General Description" states: "Each Unit Owner will also be entitled to the irrevocably exclusive use of any rear yard area or side yard area to which there is direct access from the interior of his Unit."

In that document in the section entitled "Insurance," it is spelled out that the Condominium is to provide liability insurance for personal injuries arising in common areas.

The By-Laws of the Condominium, Article VIII set forth the "house rules" to which each unit owner subscribes when becoming an owner. They provide: (2) No radio or television aerial shall be attached to or hung from the exterior of the Unit except such as shall have been approved in writing by the Board of Managers or such managing agent; nor shall anything be projected from any window of the Buildings without similar approval.

B. Applicable Federal Law

Defendant has raised as a defense to the action, Section 1.4000. Title 47 of the Code of Federal Regulations (47 CFR 1.4000), "Preemption of Restrictions that Impair the Ability to Receive Televison Broadcast Signals, Direct Broadcast Satellite Services, or Multichannel Multipoint Distribution Services or the Ability to Receive or Transmit Fixed Wireless Communication Signals." This section provides: Restrictions impairing reception of television broadcast signals, direct broadcast satellite services or multichannel multipoint distribution services.(a)(1) Any restriction, including but not limited to any state or local law or regulation, including zoning, land-use, or building regulations, or any private covenant, contract provision, lease provision, homeowners' association rule or similar restriction on property within the exclusive use or control of the antenna where the user has a direct or indirect ownership or leasehold interest in the property that impairs the installation, maintenance, or use of: (I) an antenna that is: (A) Used to receive direct broadcast satellite service, including direct-to-home satellite service, or to receive or transmit fixed wireless signals via satellite, and (B) One meter or less in diameter or is located in Alaska;...is prohibited to the extent it so impairs,...(3) For the purposes of this section, a law, regulation or restriction impairs installation, maintenance or use of an antenna if it: (i)Unreasonably delays or prevents installation, maintenance or use; (ii) Unreasonably increases the cost of installation, maintenance or use; or (iii) Precludes reception or transmission of an acceptable quality signal.(4) Any fee or cost imposed on a user by a rule, law, regulation or restriction must be reasonable in light of the cost of the equipment or services and the rule, law regulation or restriction's treatment of comparable devices. No civil, criminal, administrative or other legal action of any kind shall be taken to enforce any restriction or regulation prohibited by this section except pursuant to paragraph (d) and (e) of this section. In addition, except with respect to restrictions pertaining to safety and historic preservation as [*4]described in paragraph (b) of this section, if a proceeding is initiated pursuant to paragraph (d) and (e) of this section, the entity seeking to enforce the antenna restrictions in question must suspend all enforcement efforts pending completion of review. No attorney's fees shall be collected or assessed and no fine or other penalties shall accrue against an antenna user while a proceeding is pending to determine the validity of any restriction....(b) Any restriction otherwise prohibited by paragraph (a) of this section is permitted if: (1) It is necessary to accomplish a clearly defined, legitimate safety objective that is either stated in the text, preamble or legislative history of the restriction or described as applying to that restriction in a document that is readily available to antenna users and would be applied to the extent practicable in a non-discriminatory manner to other appurtenances, devices, or fixtures that are comparable in size and weight and pose a similar or greater safety risk as there antennas and to which local regulation would normally apply: or(2) It is necessary to preserve a prehistoric or historic district, site, building structure or object included in, or eligible for inclusion on the National Register of Historic Places,...(3) It is no more burdensome to affected antenna users than is necessary to affected antenna users than is necessary to achieve the objectives described in paragraphs (b) (1) or (b)(2) of this section....(e) Parties may petition the Commission for a declaratory ruling...,or a court of competent jurisdiction, to determine whether a particular restriction is permissible or prohibited under this section.



C. Applicable State Law

Real Property Law Article 9-B is the New York State statute that governs the creation of condominiums in the State of New York. Real Property Law 339-j provides: Compliance with by-laws and rules and regulations. Each unit owner shall comply strictly with rules, regulations, resolutions and decisions adopted pursuant thereto. Failure to comply with any of the same shall be ground for an action to recover sums due, damages or injunctive relief or both maintainable by the board of managers on behalf of the unit owners or, in a proper case, by an aggrieved unit owner. In any case of flagrant or repeated violation by a unit owner, he may be required by the board of managers to give sufficient surety or sureties for his future compliance with the by-laws, rules, regulations, resolutions and decisions. Notwithstanding the foregoing provisions of the section, no action or proceeding for any relief may be maintained due to the display of a flag of the Untied States measuring not more than four feet by six feet.[FN1][*5]

D. Case Law

A recent case from Ohio [FN2] dealt with a similar situation where the unit owner, in violation of the condominium rules and regulations, placed a satellite dish on a patio next to the condominium unit, a location considered a limited common area under the condominium declaration and regulations. In that case, the Court, ruling in favor of the unit owner, held that the condominium rule was subject to 47 CFR 1.4000 and therefore was pre-empted by the federal statute. The Ohio Court determined that it was undisputed that the unit owner had failed to obtain permission of the board of managers, that the patio was part of the limited common area of the condominium complex, and that such actions were a per se violation of the association's rules. What was a determinative fact in this case was the finding that the patio, although part of the limited common areas, was under the exclusive control or for the exclusive use of the unit owner. As such, it triggered the application of the CFR and pre-empted the association's rules. This made the actions of the association violative of the unit owner's rights under the statute. Interestingly, prior cases from around the United States which dealt with this issue almost uniformly held that so long as the condominium rule was reasonable, the restrictive rules would be enforced over the individual whims of a unit owner.[FN3]

The reasoning used by courts in supporting the supremacy of the condominium association rules was explained by the District Court of Appeals of Florida as follows: Inherent in the condominium concept is the principle that to promote the health, happiness, and peace of mind of the majority of unit owners since they are living in such close proximity and using facilities in common, each unit owner must give up a certain degree of freedom of choice which he might otherwise enjoy in separate, privately owned property. Condominium unit owners comprise a little democratic sub-society of necessity more restrictive as it pertains to use of condominium property than may be existent outside the condominium organization.[FN4]

In New York, the reported cases only deal with satellite dishes installed in apartment buildings. In each of these cases the key factor was whether the location of the satellite dish was in the exclusive control of the tenant.[FN5] [*6]

LEGAL ISSUES PRESENTED:

A. Applicability of the CFR.

On its face it appears that the federal government has pre-empted state law and condominium rules concerning the placement of satellite dishes. The above cited CFR would seem to support that conclusion.[FN6] The commerce clause of the U.S. Constitution has been interpreted and expanded into so many areas of daily life that James Madison must be leafing through his copy of the Federalist Papers and scratching his head in amazement. Conceptually, it is difficult to imagine that Congress would feel that all Americans are apparently entitled to have the most technologically advanced means of communication in their homes even when they entered into agreements with their neighbors to abide by the rules and regulations of a condominium and the individual unit owner's actions would trample on the rights of his or her neighbors. What is troubling about this CFR is that it is adversely affecting the property rights of other homeowners in the condominium development. Perhaps persons purchased homes in the condominium specifically for the aesthetics of the buildings. By enacting this regulation, Congress is saying it does not care what all the other homeowners want or agreed to, any individual homeowner can install a satellite dish in common areas without any recourse available to other unit owners.

One of the facts of condominium living is that each homeowner has a vote and a voice in how the condominium is to be managed and what rules and regulations are to be promulgated. Like the fabled direct democracies of ancient Greece or of New England town meetings, the owner of a unit in a condominium has equal rights and privileges with his or her neighbor. Defendant as a homeowner could have followed the procedures set forth in the Holiday Villas Condominium "constitution" and convinced his neighbors to change the rules and regulations in regard to the installation of satellite dishes. Defendant did not choose to take that course of action. Defendant was not compelled to purchase a home in this condominium; there are hundreds of such developments in Richmond County. He voluntarily chose to move into Holiday Villas and to subject himself to the rules and regulations of that organization. In addition, since a condominium is a creature of statute, all of the documents that govern the formation and operation of this condominium are reviewed by the office of the attorney general of the State of New York. In spite of all these protections of individual rights in the procedures and practices of condominium life, the federal government found it acceptable to ignore and eliminate them from the process; so as to protect whom, the satellite dish user or the satellite dish industry?

Following the logic that permits this CFR, it is conceivable that, for example, Congress, under the commerce clause, could regulate parking spaces in condominiums, giving the owners of the least fuel efficient vehicles the right to park closer to the exit driveway so that their owners would not have to drive as much and would therefore consume less fuel. Clearly, Congress should be able to do this since such regulation would affect the consumption of fuel which is transported through interstate commerce. Or perhaps Congress could authorize individual unit [*7]owners to change the exterior appearance of the unit in violation of the condominium rules because of the existence of new technology which would make the unit more energy efficient by the installation of new walls.

Although it appears that Congress has pre-empted any state or local law or any condominium association rules in this regard, for the reasons set forth below it must be concluded that the CFR is not applicable to this situation.

Section 1.4000 only applies to restrictions "on property within the exclusive use or control of the antenna user." The patio in question does not fall into this category.

The term "patio" is not used in the offering plan, declaration, or bylaws of the condominium. Under the heading "limited common elements" these documents mention "terraces" and not "patios." Based on their description in the documents, the Court assumes they are the same area. The current location of the defendant's satellite dish is on the patio in front of his house. This area may be used by the defendant as the adjacent unit owner to the exclusion of other unit owners but not to the exclusion of the Board of Managers. As stated above, the plan of the condominium specifically defines some areas as being "irrevocably" assigned to the "exclusive use" of the unit owner and the patio/ terrace is not included in that definition. This leads to the conclusion that in addition to the unit owner other persons must have access to the patio.

The patio area is the public's means of ingress and egress to the unit. Further, the condominium, not the unit owner, is responsible for the maintenance of this area and it maintains and pays the liability insurance. As a result, the condominium would be liable if a third party suffered personal injuries on the patio. It leads to the question of whether an insurance carrier could successfully disclaim coverage if someone tripped over the satellite dish and was injured and the condominium could not establish that it sought to have the dish removed. Would the existence of the CFR insulate the condominium from suit and leave the injured party remediless?

Clearly, if the defendant sought to install the satellite dish on a deck or balcony attached to his unit and under his exclusive control, then the CFR would be applicable. Defendant has not established that the patio is under his exclusive control. The documents applicable to the formation and regulation of the condominium lead to the conclusion that the patio is common area accessible by others and therefore outside the ambit of the CFR. This Court is distinguishing the Woodbridge Condominium case on that basis.

B. Does the CFR create a "taking?"

In 1982 the United States Supreme Court ruled that a New York State statute which permitted cable television lines to be installed on private property amounted to a taking under the Fifth and Fourteenth Amendments of the U.S. Constitution.[FN7] The Court concluded that "a permanent physical occupation authorized by government is a taking without regard to the public [*8]interests that it may serve."[FN8] It went on to say, "when the character of the governmental action...is a permanent physical occupation of property, our cases uniformly have found a taking to the extent of the occupation, without regard to whether the action achieves an important public benefit or has only minimal economic impact on the owner."[FN9][*9]

It is clear that Section 1.4000 authorizes the installation of satellite dishes and such devices on private property owned by someone other than the user, in this case, the condominium. If the Court were to find that the patio was under the exclusive use of the defendant, then the satellite dish would be installed on the condominium's property without its consent and without any compensation solely as a result of the government's action in passing this regulation. On its face this would seem to qualify as a taking, entitling the condominium to compensation.

What would seem to be an issue is whether or not the installation is "permanent." If permanent, then it constitutes a taking. It can be argued that the satellite dish is not permanent since it is capable of being removed by the user at the user's option. What does make it permanent is not the physical installation but the fact that the user has a permanent right to keep the satellite dish in place over the objections of the condominium. Permanency would flow from the right to install and maintain the satellite dish and not from its actual physical presence. If this were not the case, then demolition of the building, or in this case, removal of the patio, would terminate the right. That cannot be the intent of the law. In fact, it would seem that if the user sold the premises, he or she could include the satellite dish in the sale. It is unclear whether the dish would qualify as an item of personal property or a fixture. If a fixture, it would support the contention that its installation is permanent and that its installation qualifies as a taking.

It might be concluded that the CFR recognizes that this is a taking since it incorporates the right of the servient property owner to impose a reasonable fee or cost on a user presumably as compensation for the intrusion onto the property, in this case the common areas of the condominium (47 CFR 1.4000(a)(4)). It must be concluded that the installation of the satellite dish on common areas owned by the condominium is in fact a taking under the United States Constitution and that the plaintiff is entitled to compensation for the intrusion.

C. Does Civil Court have the jurisdiction to entertain defendant's defense?

Defendant raises the federal regulation as a defense to plaintiff's claim for fines assessed [*10]against the defendant for having installed the satellite dish without the condominium's consent. The CFR section at paragraph (e) states that if there is a question as to whether a "particular restriction is permissible or prohibited" the parties may petition the Commission or "a court of competent jurisdiction" for a "declaratory ruling." There is no showing that either party sought to have the Federal Communications Commission determine their respective rights in regard to this issue.

Civil Court being a court of limited jurisdiction only has those powers given to it by the Civil Court Act. The only declaratory relief obtainable in Civil Court by statute is pursuant to CCA 212-a. This section applies only to a "controversy involving the obligation of an insurer to indemnify or defend a defendant in an action in which the amount sought to be recovered does not exceed $25,000.00." It does not have any direct declaratory judgment jurisdiction.

It would appear that the only conclusion that can be drawn from this is that the Civil Court cannot entertain the defendant's defense since it would not have the jurisdiction to hear this matter if it were brought directly as an action by either party under the federal law. The appropriate declaratory relief would only be obtainable in Supreme Court, the court of general jurisdiction in New York.

It can also be argued that the proper procedure for the defendant is to bring a proceeding pursuant to CPLR Article 78 alleging that the plaintiff was arbitrary or capricious or abused its discretion when it refused to grant permission to the defendant to install the satellite dish (CPLR 7803). Defendant testified that he purchased and installed the dish in late 1996 or early 1997 and that he applied to the plaintiff for permission and was denied. At that point, he would have had four months from the date of the denial in which to commence a CPLR Article 78 proceeding (CPLR 217) in the Supreme Court. He did not do so and would now be timed barred. However, the plaintiff testified that it first noticed the installation in May 2001 and sent the defendant a letter dated June 18, 2001 directing him to remove it. Defendant refused and has remained in violation of the rules since then. It might be argued that the Board action on that date triggered a new four month statute of limitations for the defendant to act. Again, the defendant, ignoring his right to do so, took no steps to have the Supreme Court determine whether the Board had acted reasonably or was in violation of the federal law when it directed the removal of the dish. Even under the later date, defendant would be time barred from raising this issue as a defense to a collection proceeding.

The above being said, there is a section of the Civil Court Act that would give the Court the jurisdiction to resolve this dispute. CCA 212 states: " In the exercise of its jurisdiction the court shall have all of the powers that the supreme court would have in like actions and proceedings." This Court has previously determined that CCA 212 applies in situations where the Court has the jurisdiction to determine the plaintiff's cause of action but the parties raise other issues that may be beyond the statutory grant of jurisdiction to the Court. When these situations arise, rather than have the Civil Court resolve all the issues, one of the parties would be required to commence another action in the Supreme Court. This section exists to prevent duplicative [*11]litigation between the parties and allow the Civil Court, once it has jurisdiction over the plaintiff's cause of action, to resolve all outstanding issues between the litigants (See Minchew v ATP Development, NYLJ, 3/18,05 P. 22 col. 1). In the interest of judicial economy and as provided in CCA 212, this Court has the jurisdiction to entertain the defense of the defendant and resolve the dispute between the parties.

D. What remedies are available to the defendant?

As the defendant resides in a condominium the by-laws, rules and regulations provide a method for the members of the condominium to amend those documents (By-Laws Article XIII). Defendant has not shown that he has made any attempt to bring the issue before the other unit owners and amend the by-laws to permit the installation of satellite dishes and other telecommunication devices. Since a condominium is just about as close to the heralded direct democracy of ancient Athens or the New England town meeting, it seems safe to conclude that prior to asserting that the plaintiff has acted in violation of the law or defendant's rights, defendant should have at least exhausted the remedies available to him under the by-laws of the condominium.

Defendant is premature in seeking to have the court system intervene in the situation without having exhausted the remedies available to him under the condominium by-laws or establishing that such a process would be futile. There is no showing that he made any attempt in that regard and therefore even if this action was commenced within the limitations period, it would have to be denied.

E. Is the plaintiff entitled to damages?

Plaintiff seeks as damages the penalties in the amount of $100.00 a week assessed against the defendants commencing December 4, 2003. Plaintiff alleges that the penalties are permitted pursuant to Article VIII of the House Rules adopted by the condominium Board. The defendant is charged with violating Section 6(a) of the House Rules which prohibits any object being attached to the front patio of a unit without the prior written consent of the Board. Section 24 fixes the penalty for violating Section 6(a) at $25.00. The document does not state if the fine is weekly or monthly. Section 23(b) states: "Fines of not less than $25 and not more than $500.00 will be imposed by the Board when Violations are not corrected within the given time for compliance. Fines must be paid by the Home Owner within fifteen (15) days for corrective action." Nothing in the schedule of fines indicates that a fine for a violation of section 6(a) will be increased to $100.00 a week. In fact, nothing in the schedule sets forth what is the time period between fine imposition dates. Since common charges and assessments are billed on a monthly basis, it is reasonable to conclude that fines would also be assessed on that schedule. There is nothing in the House Rules to indicate that the fines are due on a weekly basis. Since the plaintiff drafted the house rules, any discrepancy in their terms must be presumed against the drafter. The fines therefore can only be assessed at $25.00 a month.

Section 23(d) provides that if a fine is not paid or appealed, additional fines and interest at "highest current loan rates will be imposed," yet there is no definition of what "highest current [*12]loan rates" means or if it relates to a particular index. As such, this section is void for vagueness. No reasonable person could determine what the penalty is for not paying a previously assessed fine.

Section 24 provides that a 20% penalty of the amount due must be assessed on payments received after the fifteenth of any month. This would mean that each month that the fine was not paid an additional $5.00 would be due for violation of section 6(a). This does not permit adding 20% on the $30.00 due for the second month(the fine plus the penalty), since this would be the addition of a penalty to a penalty. Also, section 24 states that interest "at the highest current loan rates" will be charged after the last day of the month. However, as stated above, as this is a standardless amount and no reasonable person can determine what that rate would be, it is unenforceable.

Plaintiff is entitled to $25.00 a month from December 2004 to April 2005, a period of 17 months or $425.00. Plaintiff is entitled to $5.00 a month as a penalty for each of the 16 months payment was not made or $80.00. As the by-laws and house rules permit reasonable attorney's fees to be assessed, plaintiff is entitled to be reimbursed for those expenses. Counsel for plaintiff will submit an affirmation of services rendered in this matter upon notice to defendant's counsel and a separate judgment will be entered in that regard.

CONCLUSION:

Plaintiff is entitled to a judgment in the amount of $505.00 representing fines for failing to remove the satellite dish for the months of December 2003 through April 2005 at $25.00 a month and late charges of $5.00 a month for the months December 2003 through March 2005. In addition, plaintiff may recover legal fees to be established by an affirmation from counsel.

Defendant's claim that 47 CFR 1.40000 is applicable to the facts of the case is denied on the grounds that the defendant has failed to establish that he has exclusive control of the patio area where the satellite dish was installed. As such, the defendant has the choice of removing the satellite dish or installing one of smaller size in the location assigned by the condominium Board.

Judgment for plaintiff in the amount of $505.00 with interest from the date of judgment, costs and disbursements.

This constitutes the decision and order of the Court.

Exhibits, if any, will be available at the office of the clerk of the court 30 days after receipt of a copy of this decision.

Dated: May 5, 2005____________________________

Staten Island, NY HON. PHILIP S. STRANIERE

Judge, Civil Court Footnotes

Footnote 1: Please note that the statute has not been made gender neutral.

Footnote 2: Woodbridge Condominiums Owners' Association v Jennings, 2004 Ohio 5317, 2004 Ohio App Lexis 4792 (2004).

Footnote 3: O'Buck v Cottonwood Village Condominium Association, Inc. , 750 P.2d 813, (1988)

Footnote 4: Hidden Harbour Estates, Inc. v Norman, 309 So. 2d 180 at 181-182 (1975).

Footnote 5: Sherwood Complex LLC v Vouzan, 4 Misc 3d 73 (2004); Lemle Realty Corp. v Desjardin, 3 Misc 3d 1104(A) (2004); Urban Horizons Tax Credit Fund, LP v Zarick, 195 Misc 2d 779 (2003).

Footnote 6: It should be pointed out that the drafters of this section thought it necessary to place the verb in the first sentence after the 188th word.

Footnote 7: Loretto v Teleprompter Manhattan CATV Corp., 458 US 419 (1982).

Footnote 8: Loretto at 426.

Footnote 9: Loretto at 434, 435.

APPEARANCESAttorney for Plaintiff:Michael Swaaley, Esq. 4459 Amboy Road Suite 2 Staten Island, NY 10312 718-227-3100 Attorney for Defendant:Alan R. Gaines, Esq. 2555 Richmond Ave. Staten Island, NY 10314 718-983-8400