Trump Plaza Owners, Inc. v Weitzner

[*1] Trump Plaza Owners, Inc. v Weitzner 2007 NY Slip Op 51437(U) [16 Misc 3d 1115(A)] Decided on June 22, 2007 Supreme Court, New York County Kapnick, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 22, 2007
Supreme Court, New York County

Trump Plaza Owners, Inc., Plaintiff,

against

Dorothea M. Weitzner, Defendant.



110351/03

Barbara R. Kapnick, J.

Plaintiff Trump Plaza Owners, Inc. seeks in this action:

(a)a declaration that the Proprietary Lease for the cooperative apartment, Penthouse 39D at Trump Plaza, 167 East 61st Street, New York, New York (hereinafter called the "Tower Building"), between plaintiff, as Lessor, and defendant Dorothea M. Weitzner, as Lessee, is terminated and no longer in force and effect (first cause of action);

(b)an order directing the ejectment and removal of defendant from the apartment (second cause of action);

(c)a declaration (i) permitting plaintiff to sell the shares appurtenant to defendant's apartment at public or private auction; (ii) permitting plaintiff to cancel the stock certificate for shares of the cooperative corporation held by defendant; (iii) permitting plaintiff to issue new stock certificates and a Proprietary Lease for the apartment to the auction purchaser; (iv) permitting plaintiff to retain such portion of the proceeds of the sale of the shares necessary to pay or reimburse plaintiff for all indebtedness of defendant to plaintiff under the Proprietary Lease, including all unpaid rent and additional rent and all legal and related expenses incurred by plaintiff in connection with such action; and (v) remitting to defendant any net amounts remaining after payment of such indebtedness and expenses (third cause of action);

(d)a preliminary and permanent injunction enjoining defendant from continuing to violate paragraph 18 of the proprietary lease and paragraph 5 of the House Rules (fourth cause of action);and

(e)reasonable legal fees, costs and disbursements incurred in prosecuting this action (fifth cause of action).

Defendant has asserted counterclaims for legal fees (first [*2]counterclaim), punitive damages as a result of plaintiff's acting without authority and commencing this action' (second counterclaim), and compensatory and punitive damages arising out of plaintiff's causing defendant extreme emotional distress (third counterclaim).

Defendant now moves for summary judgment dismissing plaintiff's complaint against her and reimbursing her for legal fees pursuant to the Proprietary Lease and Real Property Law § 234, on the grounds that plaintiff failed to follow the terms of the Proprietary Lease in its efforts to terminate plaintiff's tenancy, and plaintiff, in any event, reinstated defendant's tenancy by serving a notice to cure subsequent to the purported termination of her tenancy.

Plaintiff opposes the motion and cross-moves for an order: (i) permitting plaintiff to amend the complaint to correct a misstatement in paragraph 18 i.e., to allege that a meeting of the Board of Directors held on April 8, 2003 at which the Board voted in favor of terminating defendant's tenancy, was a special meeting' as required by the Proprietary Lease (and not a regular meeting' as was initially alleged); (ii) permitting plaintiff to supplement the complaint to include events that occurred after this action was commenced; (iii) compelling defendant to submit to a physical and mental examination in connection with her counterclaim for extreme emotional distress; and (iv) compelling defendant to produce certain documents and scheduling an in-camera inspection by the Court of any documents which are purportedly non-discoverable.

Background

Paragraph 31 of the Proprietary Lease provides, in relevant part, as follows: If, upon, or at any time after, the happening of any of the events mentioned in subdivisions (a) to (j) inclusive of this Paragraph 31, the Lessor shall give to the Lessee a notice stating that the term hereof will expire on a date at least five (5) days thereafter, the term of this lease shall expire on the date so fixed in such notice as fully and completely as if it were the date herein definitely fixed for the expiration of the term, and all right, title and interest of the Lessee hereunder shall thereupon wholly cease and expire, and the Lessee shall thereupon quit and surrender the Apartment to the Lessor, it being the intention of the parties hereto to create hereby a conditional limitation, and thereupon the Lessor shall have the right to re-enter the Apartment and to remove all persons and personal property therefrom, [*3]either by summary dispossess proceedings, by any suitable action or proceeding at law or in equity, or by force or otherwise, and to repossess the Apartment in its former estate as if this lease had not been made, and no liability whatsoever shall attach to the Lessor by reason of the exercise of the right of re-entry, re-possession and removal herein granted and reserved:

* * * Default in Other Covenants

(e) If the Lessee shall be in default in the performance of any covenant or provision hereof, other than the covenant to pay rent, and such default shall continue for thirty (30) days after written notice from the Lessor; provided, however, that, if said default consists of the failure to perform any act the performance of which requires any substantial period of time, then if, within said period of (30) thirty days, such performance is commenced and thereafter diligently prosecuted to conclusion without delay and interruption, the Lessee shall be deemed to have cured said default; The Lessee's Objectionable Conduct

(f)If, at any time, the Lessor shall determine, upon the affirmative vote of two-thirds (2/3rds) of its then Board of Directors, at a meeting duly called for that purpose, that because of objectionable conduct on the part of the Lessee, or of a person dwelling or visiting in the Apartment, repeated after written notice from the Lessor (emphasis supplied), the tenancy of the Lessee is undesirable (it being understood, without limiting the generality of the foregoing, that repeatedly to violate or disregard the House Rules hereto attached or hereafter established in accordance with the provisions of this lease, or to permit or tolerate a person of dissolute, loose or immoral character to enter or remain in the Tower Building or the Apartment, shall be deemed to be objectionable conduct);

By letter dated October 29, 2002, sent via certified mail, return receipt requested, to defendant at a post office box, defendant was notified as follows: Trump Plaza Owners, Inc. (the "Corporation") is hereby giving you written notice that you are engaging in objectionable conduct. We have recently received [*4]complaints that you have been, over the last two years, pounding on the walls which you share in common with PH 39E at 167 East 61st Street, New York, New York, shouting obscenities and death threats at the owners of said apartment and engaging in other conduct which is causing your neighbors tremendous aggravation and physical and mental stress. The conduct also violates House Rule No. 5, which prohibits lessees from making or permitting any disturbing noises or doing or permitting anything to be done that interferes with the rights, comfort or convenience of other lessees. Your tenancy is undesirable because of this objectionable conduct.If you do not cease such conduct immediately, the Corporation will terminate your Proprietary Lease pursuant to Paragraph 31(f) of the Proprietary Lease for Penthouse 39 D, in addition to the other rights and remedies available to the Corporation under Paragraph 32 of the Proprietary Lease, to seek to evict you from Trump Plaza.

By letter dated April 21, 2003, sent via certified mail, return receipt requested, to defendant at the Tower Building, the Board notified defendant that despite the notice given to her pursuant to the October 29, 2002 letter, she had continued her "objectionable conduct which is a violation of Par. 18(b) of the Proprietary Lease and Par. 5 of the House Rules."[FN1]

The letter further stated as follows: Notice is hereby given that, upon the affirmative vote of not less than two-thirds of the Board of Directors of [*5]Trump Plaza Owners, Inc., at a meeting held on April 8, 2003, duly called for that purpose, the Board has determined that, because of such objectionable conduct on your part, which has persisted despite the written notice given to you to cease such conduct, your tenancy is undesirable.Accordingly, pursuant to Paragraph 31 of the Proprietary Lease, notice is hereby given that the term of the Proprietary Lease ... will expire on April 30, 2003 as fully and completely as if it were the date therein definitely fixed for the expiration of the term, and all your right, title and interest under said Proprietary Lease shall thereupon wholly cease and expire, and you shall thereupon quit and surrender Apartment 39D. Your failure to do so will entitled Trump Plaza Owners, Inc. to remove you by suitable action or proceeding.

Plaintiff thereafter commenced the instant action.

While this action was already pending, a letter dated October 21, 2004 and signed by Andrew Perel as President of the Board of Directors, was sent via certified mail, return receipt requested, to defendant at her post office box, as well as to her apartment address, stating, in relevant part, as follows: Trump Plaza Owners, Inc. (the "Corporation") is hereby giving you written notice that you are engaging in objectionable conduct. The Corporation has received complaints that you have been, over the past three years, pounding on the walls of your apartment, PH 39D, which you share in common with PH 39E ("PH 39E") at the Building, shouting obscenities and death threats at the residents of PH 39E and engaging in other conduct which is causing your neighbors to fear for their safety, to suffer tremendous aggravation and physical and mental stress. In addition, you have improperly alleged and publicized to others, without any proof or substantiation whatsoever, that the Corporation and the residents of PH 39E are illegally surveilling you and eavesdropping on all of your conversations from the roof of the Building (all examples are collectively referred to you as your "Objectionable Conduct.") The Corporation's investigation of these various matters has resulted in a determination and finding that the charges and claims as made are true and supported by ample evidence.[*6]

* * * If you do not cease such conduct immediately, the Corporation will terminate your Lease pursuant to paragraph 31(f) of the Lease and pursue all other rights and remedies which are available to the Corporation which include, but not limited to, the Corporation seeking your eviction from the Building.Finally, this notice supplements and is not intended to be in derogation of the previous notices sent to you by the Corporation including, but not limited to, those notices dated October 29, 2002 and April 21, 2003.

By letter dated February 15, 2005 and also signed by Mr. Perel, which was delivered by hand and sent via certified mail, return receipt requested, to defendant at both her post office box, as well as her apartment, plaintiff notified defendant as follows: Please be advised that a special meeting of the Board of Directors (the "Board") of Trump Plaza Owners, Inc. (the "Apartment Corporation") shall convene on February 22, 2005 at 6:00 p.m. to determine whether to terminate your proprietary lease in accordance with paragraph 31(f) therein based upon your objectionable conduct. You and your legal counsel are invited to attend the meeting to provide the Board with any information you wish the Board to take into consideration before the Board votes on whether your proprietary lease should be terminated...

* * * Your unwillingness to cease and desist your objectionable behavior has left the Board with no alternative but to proceed in this manner.

The Board thereafter served a "Notice of Termination" dated March 9, 2005 upon defendant via certified mail, return receipt requested, and first class mail at the Tower Building address and her post office box, notifying defendant that pursuant to paragraph 31(f) [of the proprietary lease], the term of your proprietary lease shall expire on March 29, 2005 (the "Termination Date"), that being more than [*7]five (5) days from the date of this notice. All your right, title and interest in the Premises shall cease and expire on the Termination Date. On the Termination Date, the Apartment Corporation shall have the right to sell your shares of stock at a public auction and/or it may commence the necessary proceedings at law or in equity to recover possession of the Premises, if applicable.

* * * This notice supplements and is not intended to be in derogation of any notices previously sent to you by the Apartment Corporation, including, but not limited to the notices, dated October 29, 2002, April 21, 2003 and October 21, 2004.

Discussion

Defendant argues that the October 29, 2002 letter ("Notice to Cure") and the April 21, 2003 letter ("Notice of termination") were insufficient as a matter of law because they fail to contain specific names of the people who complained and the times and dates of the alleged misconduct. Defendant further argues that service of the October 29, 2002 Notice to Cure to her post office box address and not to her apartment constitutes a fatal defect, rendering its service a nullity. Finally, defendant argues that the Notice to Cure was defective because the letter is not signed by any individual.

Plaintiff contends that while it believes that the Notice and subsequent termination of defendant's tenancy was proper, it elected when defendant's counsel first raised these objections to simply repeat the process - i.e., to serve another notice on October 21, 2004 - and to move to supplement the Complaint.

Defendant, however, argues that a termination notice issued in 2005 cannot be used as the predicate notice for an ejectment action commenced in 2003.

It is well settled law in the Second Department that "when there is a valid landlord-tenant relationship, a predicate notice must be served on the defendant before commencement of an ejectment action (citations omitted)." Ricciardo v. Ricciardo, 6 Misc 3d 223 (Civ. Ct., Kings Co. 2004). See also, Commercial Hotel v. White, 194 Misc 2d 26 (App. Term, 2nd Dep't 2002); Gerolemou v. Soliz, 184 Misc 2d 579 (App. Term, 2nd Dep't 2000); Kaur v. Sobhey, 5 Misc 3d 1012(A) (Civ.Ct., Kings Co.2004). [*8]

This Court has previously found this rule to be equally applicable in the First Department except in narrow circumstances not present here. Prana Growth Fund I, L.P. v. Lazala, 8 Misc 3d 667 (Sup. Ct., NY Co. 2005); see, cf., East 82 LLC v. O'Gormley, 295 AD2d 173 (1st Dep't 2002), in which the Appellate Division, First Department declined to dismiss an ejectment action for lack of a predicate notice under the specific circumstances of that case, which (unlike here) included a prior nonpayment proceeding and other notices and incontrovertible evidence.

Moreover, paragraphs 31(e) and (f) of the Proprietary Lease require plaintiff to provide the tenant with written notice of the alleged objectionable conduct prior to holding a special meeting to vote on the termination of the tenancy. Thus, absent the giving of a proper predicate notice, plaintiff's claims for ejectment must fail. See, Gerolemou v. Soliz, supra.

This Court finds that the allegations contained in the October 29, 2002 notice, "although setting forth no names, dates or specific instances of the misconduct, describe a nuisance ... with sufficient detail to have allowed [defendant] to prepare a defense." Pinehurst Construction Corp. v. Schlesinger, 38 AD3d 474, 475 (1st Dep't 2007). See also, Domen Holding Co. v. Aranovich, 1 NY3d 117 (2003).

However, paragraph 27 of the Proprietary Lease specifically provides that Any notice by or demand from either party to the other shall be duly given only if in writing and sent by certified or registered mail, return receipt requested: ... if to the Lessee, addressed to the Tower Building. Either party may, by notice served in accordance herewith, designate a different address for service of such notice or demand...

There is no dispute that the October 29, 2002 notice was not served upon defendant at the Tower Building, and plaintiff has not alleged that it received a notice from defendant designating her post office box as "a different address for service of such notice."

Accordingly, this Court is constrained to find that plaintiff's claims for ejectment were brought prior to proper service of the required predicate notice. Such a defect cannot be remedied after the commencement of the action, as plaintiff has attempted to do in this case. [*9]

Accordingly, defendant's motion for summary judgment is granted to the extent of dismissing plaintiff's first, second and third causes of action without prejudice. Plaintiff's fourth cause of action for injunctive relief and fifth cause of action for attorneys' fees are severed and continued. That portion of defendant's motion seeking reimbursement for legal fees pursuant to the proprietary lease and § 234 of the Real Property Law is denied since the Court has not dismissed the entire case and is still entertaining some of the relief sought by the plaintiff.

That portion of the cross-motion by plaintiff seeking permission to amend the Complaint to correct a misstatement in paragraph 18 is denied as moot.

However, inasmuch as leave to amend pleadings is to be "freely given upon such terms as may be just" (CPLR § 3025[b]), that portion of the cross-motion seeking permission to supplement the complaint to include events that occurred after this action was commenced is granted.

Those portions of the cross-motion seeking to compel defendant to submit to a physical and mental examination, and to produce certain documents and to schedule an in-camera inspection by the Court of any documents which are purportedly non-discoverable are held in abeyance pending a conference in IA Part 12 on August 1, 2007 at 9:30 a.m.

This constitutes the decision and order of this Court.

Date:June , 2007________________________

Barbara R. Kapnick

J.S.C. Footnotes

Footnote 1:Paragraph 18(b) of the Proprietary Lease provides, in relevant part, that "[t]he Lessee shall not permit or suffer any unreasonable noises or anything that will interfere with the rights of other lessees or unreasonably annoy them or obstruct the public halls or stairways."

Paragraph 5 of the House Rules provides, in relevant part, as follows: "No owner shall make or permit any disturbing noises in the building or do or permit anything to be done therein that will interfere with the rights, comfort or convenience of other owners."