Baum v Ragozzino

[*1] Baum v Ragozzino 2009 NY Slip Op 50566(U) [23 Misc 3d 1104(A)] Decided on March 31, 2009 Supreme Court, Richmond County McMahon, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 31, 2009
Supreme Court, Richmond County

Michael Baum, Plaintiff(s),

against

Debra Ragozzino, Michael Navetta, Michael Motelson, Dome Property Management and Station Avenue Homeowners Association, Inc., Defendant.



101752/2006

Judith N. McMahon, J.

On or about November 30, 2005, the plaintiff commenced this action against defendants alleging, inter alia, harassment, intentional infliction of emotion distress and violations by the homeowners association's Board of Directors in authorizing a special assessment. It is undisputed that from 1998 through 2007, the plaintiff Michael Baum resided at 47 Savo Loop, Staten Island, New York. This residence was part of, and subject to, the rules and regulations promulgated by the Station Avenue Homeowners Association, Inc. [hereinafter "HOA"]. Station Avenue HOA is a not-for-profit corporation that owns and operates 35 homes on Savo Loop. Defendants Debra Ragozzino and Michael Navetta are the current President and Tresurer of the HOA, respectively. Defendant Dome Property Management is the managing agent for the HOA and Michael Motelson is Dome's President.

The alleged incidents and/or problems surrounding this case arose in connection with a special assessment placed on the homeowners of Savo Loop by the HOA to repair an emergency sewage issue. It is plaintiff's contention that the assessment, along with various other expenditures, were not properly authorized and/or in error. Further, the plaintiff contends that as a result of his questioning the assessment and refusal to pay, the defendants embarked on an intentional plan to harass, annoy, alarm, menace, intimidate and disparage plaintiff and plaintiff's immediate family. Plaintiff in his complaint seeks a declaratory judgment on an alleged cloud of title placed on his property and the validity of the aforementioned special assessment. Further, plaintiff seeks compensatory damages for harassment, intentional infliction of emotional distress, assault, attorneys fees and for alleged breach of quiet enjoyment. Presently, defendants have brought this motion for summary judgment, on the ground that, inter alia, defendants did not harass the plaintiff and that Station Avenue HOA did not violate the business judgment rule in determining to levy a special assessment upon the homeowners.

It is well settled that a "proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). Once the movant has satisfied this burden, "the burden shifts to the [opponent] to lay bare his or her proof and demonstrate the existence of a triable issue of fact" (Chance v. [*2]Felder, 33 AD3d 645, 645-646 [2d Dept 2006]; Zuckerman v. City of New York, 49 NY2d 557 [1980]). In this regard, the court is enjoined to accept the evidence tendered by the opposing party as true, and "must deny the motion if there is even arguably any doubt as to the existence of a triable issue" (Fleming v. Graham, 34 AD3d 525 [2d Dept 2006] quoting Barker v. Briarcliff School Dist., 205 AD2d 652, 653 [2d Dept 1994] [internal quotation marks omitted]).

I.First Cause of Action

Plaintiff's first cause of action alleges that "defendants' embarked on an intentional, deliberate and malicious campaign to harass plaintiff and plaintiff's immediate family" and further intentionally inflicted emotional distress upon plaintiff. Presently, defendants have brought this motion for summary judgment, on the grounds that there exists no evidence that defendants inflicted emotional distress upon or harassed plaintiff.

The tort of intentional infliction of emotional distress includes four elements, "extreme and outrageous conduct, an intent to cause . . . severe emotional distress, a causal connection between the conduct and injury and, severe emotional distress" (Andrews v. Bruk, 220 AD2d 376, 376 [2d Dept., 1995]; Richard L. v. Armon, 144 AD2d 1, 3 [2d Dept., 1989]). To support an action for intentional infliction of emotional distress, the conduct complained of "must be so outrageous in character and extreme in degree that it surpasses the limits of decency" and that it disturbs another "person's mental and emotional tranquility" (Burrell v. International Assoc. of Firefighters, 216 AD2d 346, 346 [2d Dept., 1995]; Green v. Leibowitz, 118 AD2d 756, 756 [2d Dept., 1986]). Although conduct may be considered inappropriate or may not be condoned, such conduct may not "give rise to a level which would satisfy the extreme and outrageous conduct element of the cause of action" (Andrews v. Bruk, 220 AD2d 376, 376 [2d Dept., 1995]; Roach v. Stern, 252 AD2d 488, 491[2d Dept., 1998]).

In support of the motion, defendants have submitted evidence in admissible form sufficient to warrant summary judgment, that their alleged conduct was not "outrageous in character" or so "extreme in degree as to surpass the limits of decency" (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; Burrell v. International Assoc. of Firefighters, 216 AD2d 346, 346 [2d Dept., 1995]). Further, defendants have also submitted evidence that plaintiff has failed to make a showing of severe emotional distress (Andrews v. Bruk, 220 AD2d 376, 376 [2d Dept., 1995]; Richard L. v. Armon, 144 AD2d 1, 3 [2d Dept., 1989]). In opposition, plaintiff has successfully raised triable issues of fact regarding whether the alleged conduct of defendants was so "outrageous in character and extreme in degree that it surpasses the limits of decency" (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; Burrell v. International Assoc. of Firefighters, 216 AD2d 346, 346 [2d Dept., 1995]). As a result, questions of fact exist regarding whether defendants' conduct amounts to the tort of intentional infliction of emotional distress (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; Herrin v. Airborne Freight Corp., 301 AD2d 500, 500-501 [2d Dept., 2003]).

The court notes that plaintiff also alleges under the first cause of action that the defendants "united in interest" to "harass and threaten and menace and annoy" plaintiff. However, it is well settled that New York does not recognize a cause of action alleging harassment (Ralin v. The City of New York, 44 AD3d 838, [2d Dept., 2007][finding that "New York does not recognize a cause of action to recover damages for harassment"]; Santoro v. Town of Smithtown, 40 AD3d 736, 738 [2d Dept., 2007][holding that New York does not recognize a common-law cause of action to recover damages for harassment"]). As such, summary judgment [*3]is appropriate in favor of defendants on plaintiff's claims of harassment.

II.Second Cause of Action

Plaintiff's second cause of action alleges that defendants' actions "have breached plaintiff's right to quiet enjoyment of the premises." Plaintiff alleges that there exists a duty under the rules and regulations promulgated by the HOA to not "interfere with the peaceful possession rights, comforts or conveniences, or which may be or become an annoyance to the other Homeowners."

"To establish a breach of the covenant of quiet enjoyment, a tenant must show either an actual or constructive eviction" (Grammar v. Turits, 271 AD2d 644, 645 [2d Dept., 2000]; Kaniklidis v. 235 Lincoln Place Housing Corp., 305 AD2d 546, 547 [2d Dept., 2003]). A constructive eviction occurs where a "landlord's wrongful acts substantially and materially deprive the tenant of the beneficial use and enjoyment of the leased premises" (Grammar v. Turits, 271 AD2d 644, 645 [2d Dept., 2000]).

In support of the motion, defendants have submitted evidence that there was no eviction, either actual or constructive, and as such no breach of the covenant of quiet enjoyment (Kaniklidis v. 235 Lincoln Place Housing Corp., 305 AD2d 546, 547 [2d Dept., 2003]; Herrin v. Airborne Freight Corp., 301 AD2d 500, 500-501 [2d Dept 2003]). However, in opposition the plaintiff has raised triable issues of fact regarding whether the behavior of defendant's rose to a level to warrant constructive eviction (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; Herrin v. Airborne Freight Corp., 301 AD2d 500, 500-501 [2d Dept 2003]). Plaintiff contends that the HOA's rules and regulations, namely the Restrictions, Easements, Charges and Liens' paragraph, created "an obligation to abate any nuisance occurring on the premises." Plaintiff alleges that defendants' conduct created a nuisance [FN1] which caused him to sell his home. Plaintiff presents evidence that raised questions of fact as to whether the alleged conduct of defendant's constructively evicted him by creating a nuisance (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; Herrin v. Airborne Freight Corp., 301 AD2d 500, 500-501 [2d Dept 2003]). Thus, summary judgment is inappropriate.

III.Third Cause of Action

Plaintiff's third cause of action alleges assault. Generally, "[t]o sustain a cause of action to recover damages for assault, there must be proof of physical conduct placing the plaintiff in imminent apprehension of harmful contact" (Bastein v. Sotto, 299 AD2d 432, 433 [2d Dept., 2002]; Cotter v. Summit Securities Services, 14 AD3d 475, 475 [2d Dept., 2005]; Fugazy v. Corbetta, 34 AD3d 728, 729 [2d Dept., 2006]).

In support of the motion for summary judgment, defendants have submitted evidence in admissible form that they did not assault plaintiff. More specifically, defendants provide evidence that no physical conduct was engaged in between the parties, nor had any ever been alleged by plaintiff (Bastein v. Sotto, 299 AD2d 432, 433 [2d Dept., 2002]; Cotter v. Summit [*4]Securities Services, 14 AD3d 475, 475 [2d Dept., 2005]; Fugazy v. Corbetta, 34 AD3d 728, 729 [2d Dept., 2006]). In opposition, plaintiff has failed to raise a triable issue of fact (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; Herrin v. Airborne Freight Corp., 301 AD2d 500, 500-501 [2d Dept 2003]). The plaintiff has failed to provide any evidence whatsoever that physical conduct occurred between the parties which would have placed the plaintiff in imminent apprehension of harmful conduct (Cotter v. Summit Securities Services, 14 AD3d 475, 475 [2d Dept., 2005]; Fugazy v. Corbetta, 34 AD3d 728, 729 [2d Dept., 2006]). As a result, summary judgment is appropriate on plaintiff's third cause of action for assault.

IV.Fourth Cause of Action

Plaintiff's fourth cause of action alleges that defendants created a cloud on plaintiff's title to the property at 47 Savo Loop. Specifically, the plaintiff contends that defendants placed a lien on the property after plaintiff refused to pay the special assessment challenged herein. Presently, the plaintiff's fourth cause of action seeks a declaratory judgment to determine the validity of the instrument creating the cloud on title.

A cloud on title is defined as "[a]n outstanding claim or encumbrance which, if valid, would affect or impair the title of the owner of a particular estate, and on its face has that effect, but can be shown to be invalid or inapplicable to the estate in question" (Black's Law Dictionary, 6th Ed., pg. 255). Thus, a cloud on title, if valid would impair the owner's title. Where there is no proof that an alleged cloud upon the title hindered the plaintiff's title, the claim is inappropriate (Pope v. Saget, 29 AD3d 437, 443 [2d Dept., 2006][finding that where the no proof exists that an alleged cloud on title "thwarted" the plaintiff's title, the cause of action must be dismissed]).

In support of the motion, defendants have submitted evidence in admissible form sufficient to warrant summary judgment, that the HOA never filed a lien against plaintiff's property, despite the fees plaintiff owed to the HOA (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; Herrin v. Airborne Freight Corp., 301 AD2d 500, 500-501 [2d Dept 2003]). Defendants submitted evidence to show that the fees, plaintiff alleges were invalid and created a cloud on property title, were valid condominium charges and further that no alleged cloud on title/lien was ever filed or placed upon plaintiff's property. Most notably, defendants established that not only did a cloud on plaintiff's title not exist, plaintiff successfully sold his home and therefore his title was never impaired. In opposition, plaintiff has failed to raise questions of fact as to the existence of a cloud on plaintiff's title by defendants (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; Herrin v. Airborne Freight Corp., 301 AD2d 500, 500-501 [2d Dept 2003]). There is no evidence that plaintiff wasn't able to sell his home as a result of liens/clouds placed upon his title and, in fact, admits he sold his property successfully. As a result, summary judgment is granted and plaintiff's fourth cause of action is hereby dismissed, as no cloud of title was ever placed upon plaintiff's property.

V.Fifth Cause of Action

Plaintiff's fifth cause of action alleges that the special assessment [FN2] levied by the Station [*5]Avenue Homeowners Association was "void, invalid, unenforceable and in violation of the rules and regulations of the Station Avenue HOA." As a result, plaintiff seeks a declaratory judgment to determine the validity of the special assessment.

It is well settled that "[t]he business judgment rule, prohibits judicial inquiry into decisions made by cooperative or condominium governing boards which are taken in good faith in the exercise of honest judgment'"(Hochman v. 35 Park West Corp., 293 AD2d 650, 651 [2d Dept., 2002]; Merolo v. Bd. of Managers, 3 AD3d 520, 521 [2d Dept., 2004]). A board's fiduciary duty is to act "in good faith and with that degree of care which an ordinary prudent person in a like position would use under similar circumstance" (Board of Managers v. Fairway at N. Hills, 193 AD2d 322, 325 [2d Dept., 1993]). Further, "absent claims of fraud, self-dealing, unconscionability or other misconduct, a court should apply the business judgment rule and should limit its inquiry to whether the action was authorized and whether it was taken in good faith and in furtherance of the legitimate interests of the corporation" (Cababe v. Estate of Brookview Homeowner's Assoc., 52 AD3d 557 [2d Dept., 2008]; Forest Hills Gardens Corp. v. West Side Tennis Club, 23 AD3d 338 [2d Dept., 2005]).

In support of the motion, defendants have submitted evidence in admissible form sufficient to warrant summary judgment that the decisions by the HOA were authorized, taken in good faith and were in the legitimate interest of the corporation (id.; Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; Herrin v. Airborne Freight Corp., 301 AD2d 500, 500-501 [2d Dept 2003]). Specifically, the defendants established that the special assessment was levied in compliance with the Homeowners Association's Declarations and By-Laws which give the Board discretion to determine assessments and charge interest and related fees, if the assessments are delinquent. Further, defendants have submitted evidence that the HOA's actions were taken in good faith and no acts of, inter alia, fraud or misconduct occurred (Board of Managers v. Fairway at N. Hills, 193 AD2d 322, 325 [2d Dept., 1993]).

In opposition, plaintiff has failed to present any evidence of fraud, misconduct or self-dealing on the part of the Board in making the decision to implement a special assessment to deal with the emergency sewage problem. As such, the business judgment rule applies, prohibiting any further inquiry by the court into the authorized, legitimate, and good faith decisions by the Board (Cababe v. Estate of Brookview Homeowner's Assoc., 52 AD3d 557 [2d Dept., 2008]; Forest Hills Gardens Corp. v. West Side Tennis Club, 23 AD3d 338 [2d Dept., 2005]). As a result, summary judgment is appropriate on plaintiff's fifth cause of action where the court finds that the Board acted within their ability in levying the special assessment and no evidence of self-dealing, fraud or unconsionablility exists.

VI.Sixth Cause of Action

Plaintiff's sixth cause of action alleges that defendant, Station Avenue Homeowners' Association, has "failed and refused to pay" the reasonable value of the legal services that plaintiff performed on behalf of the HOA. An action to recover the value of services, allegedly [*6]performed by plaintiff on behalf of defendants, makes out a claim in quantum meruit (Geraldi v. Melamid, 212 AD2d 575 [2d Dept., 1995]; Rubenstein v. Ganea, 41 AD3d 54, 56 [2d Dept., 2007]). To bring a claim in quantum meruit, plaintiff must establish "the performance of the services in good faith, the acceptance of the services by the person to whom they are rendered, an expectation of compensation therefor, and the reasonable value of the services" (Geraldi v. Melamid, 212 AD2d 575, 576 [2d Dept., 1995]; Moors v. Hall, 143 AD2d 336, 337 [2d Dept., 1988]; Tesser v. Allboro Equipment Co., 302 AD2d 589, 590 [2d Dept., 2003]).

In support of the motion, defendants have submitted evidence in admissible form that they did not know when plaintiff was acting as a lawyer, rather defendants saw plaintiff's actions as those of a homeowner and board member of the HOA (Geraldi v. Melamid, 212 AD2d 575, 576 [2d Dept., 1995]; Moors v. Hall, 143 AD2d 336, 337 [2d Dept., 1988]; Tesser v. Allboro Equipment Co., 302 AD2d 589, 590 [2d Dept., 2003]). Absent knowledge that plaintiff was acting as anything more than a homeowner and board member of the HOA, defendants had no reason to believe that they would be charged for plaintiff's actions/work (Geraldi v. Melamid, 212 AD2d 575, 576 [2d Dept., 1995]; Moors v. Hall, 143 AD2d 336, 337 [2d Dept., 1988]; Tesser v. Allboro Equipment Co., 302 AD2d 589, 590 [2d Dept., 2003]). In opposition, plaintiff has failed to raise triable issues of fact, regarding plaintiff's role as attorney for the HOA (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; Herrin v. Airborne Freight Corp., 301 AD2d 500, 500-501 [2d Dept 2003]). Plaintiff did not provide any evidence that HOA expected to have to pay plaintiff for his services, as he was an active board member during his residency and an active homeowner. As a result, summary judgment is granted on plaintiff's sixth cause of action.Accordingly, it is

ORDERED that defendant's motion for summary judgment on plaintiff's first cause of action is hereby granted, in part, with respect to the claims alleging harassment and denied, in part, with respect to the claims alleging intentional infliction of emotional distress, and it is further

ORDERED that the complaint is dismissed with respect to the claims on harassment, and it is further

ORDERED that defendant's motion for summary judgment on plaintiff's second cause of action is hereby denied, and it is further

ORDERED that defendant's motion for summary judgment on plaintiff's third cause of action is hereby granted, and it is further

ORDERED that the plaintiff's third cause of action is dismissed, and it is further

ORDERED that defendant's motion for summary judgment on plaintiff's fourth cause of action is hereby granted, and it is further

ORDERED the plaintiff's fourth cause of action is hereby dismissed, and it is further,

ORDERED that defendant's motion for summary judgment on plaintiff's fifth cause of action is hereby granted, and it is further

ORDERED that plaintiff's fifth cause of action is hereby dismissed, and it is further [*7]

ORDERED that defendant's motion for summary judgment on plaintiff's sixth cause of action is hereby granted, and it is further

ORDERED that plaintiff's sixth cause of action is hereby dismissed, and it is further,

ORDERED, that this action, pursuant to Section 325(d) of the Civil Practice Laws

and Rules be, and it hereby is, transferred to the Civil Court of the City of New York,

County of Richmond, and payment of further fee of such character as may have been paid in this court shall not be required in said civil court and such fees shall be deemed to have been paid therein, and the County Clerk, Richmond County is directed to transfer all papers on file in the above entitled action to said Civil Court, and it is further

ORDERED, that plaintiff shall serve a copy of this Order upon the calendar Clerk of this court, and upon the defendant, and it is further

ORDERED that this case proceed immediately to trial on the remaining causes of action, and it is further

ORDERED that any and all further requests for relief are hereby denied, and it is further,

ORDERED that the Clerk enter Judgment accordingly.

THIS IS THE DECISION AND ORDER OF THE COURT.

Dated: March 31, 2009ENTER,

______________________________

Hon. Judith N. McMahon

Justice of the Supreme Court Footnotes

Footnote 1:To establish the existence of a nuisance, plaintiff needs to show that the HOA caused "a substantial and unreasonable interference with the use and enjoyment of the property"(Weinberg v. Lombardi, 217 AD2d 579, 579 [2d Dept., 1995];Kaniklidis v. 235 Lincoln Place Housing Corp., 305 AD2d 546, 547 [2d Dept., 2003]).

Footnote 2:The Station Avenue Homeowners Association on or about March 2005, imposed a special assessment on members of the association to remedy a situation with the community's sewage treatment. Plaintiff challenged the special assessment and was charged late fees, collection costs and attorney fees by defendants.