Board of Mgrs. of Suffolk Homes Condominium v Cheng

[*1] Board of Mgrs. of Suffolk Homes Condominium v Cheng 2008 NY Slip Op 52500(U) [21 Misc 3d 1145(A)] Decided on December 2, 2008 Supreme Court, New York County Tolub, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 2, 2008
Supreme Court, New York County

The Board of Managers of Suffolk Homes Condominium, on Behalf of Unit Owners, Plaintiff,

against

Cheri Cheng, and "J. Doe No. 1 through #3" the last three names being unknown to Plaintiff, it being intended to designate tenants upon or persons in possession of the premises described in the Complaint, if any, Defendants.



110294/08



Attorney for Plaintiff

WAGNER DAVIS P.C.

99 MADISON AVENUE - 11TH FLOOR

NEW YORK, NEW YORK

10016

Phone 212 481-9600

Fax 212-351-5035

Attorney For Defendant

KAREN COPELAND, ESQ.

521 Fifth Avenue, suite 1700

New York, New York 10175

(212) 560-7154

Walter B. Tolub, J.

FACTS

Motion sequence numbers 001, 002 and 003 are consolidated for disposition.

Plaintiff condominium board seeks a preliminary injunction (motion sequence number 001) to enjoin defendant, condominium unit owner, from harboring excessive pets in violation of the condominium By-Laws and Regulations. In response to plaintiff's [*2]motion, defendant filed a motion (motion sequence number 002) to dismiss, pursuant to CPLR 3211 (a) (1) and (3), and CPLR 213 (2), arguing that the action is time-barred. Plaintiff cross-moves for partial summary judgment pursuant to CPLR 3211 (c) (motion sequence number 003), for a declaration of the parties rights and to have the defendant permanently enjoined from harboring an excessive number of pets.

Defendant has occupied the condominium unit since 2000, and admits that she is aware that the By-Laws of the condominium limit unit owners and occupiers to a two pet maximum. The Rules and Regulations provide that no more than one of the pets may be a dog (By-Laws Rule and Regulation number 7). Defendant further admits that she moved into her apartment with four cats, has had at least that many dogs, and has maintained at least that many dogs and cats in her unit since that time. Defendant further states that the board members were at all times aware of the number of pets in her unit.

On October 11, 2007, the plaintiff sent defendant a notice to cure, providing defendant 20 days to divest herself of the excess number of pets. The notice indicates that the board had become aware of strong unpleasant odors coming from defendant's unit which was creating a nuisance to her neighbors.

Defendant failed to cure, and the instant action was commenced in July, 2008.

On April 16, 2008, defendant had an inspector from the Board of Health (BOH) examine the premises. The BOH examiner found no vile odor emanating from defendant's unit. Similarly, on August 18, 2008, Peter L. Borchelt, a certified applied animal behaviorist, visited the unit and found the animals to be well-cared for and found that there were no vile odors emanating from the apartment. On August 20, 2008, Dr. Francis Owoh from the Safety Environmental Co. of NY, Inc., inspected the unit and did not discern any noxious odors.

DISCUSSION

CPLR 3211 (a)provides that"[a] party may move for judgment dismissing one or more causes of action asserted against him on the ground that:

(1) a defense is founded upon documentary evidence; or ...

(3) the party asserting the cause of action has not legal capacity to sue ..."

Under CPLR 3211 (a)(1) a dismissal is permissible only when the documentary evidence conclusively establishes a defense to the asserted claims as a matter of law. Leon v Martinez, 84 NY2d 83 (1994). As stated in Ladenberg Thalman & Co., Inc. v Tim's Amusements, Inc., 275 AD2d 243, 246 (1st Dept 2000),

the court's task is to determine only whether

the facts as alleged, accepting them as true

and according plaintiff every possible favorable [*3]

inference, fit within any cognizable legal theory

(Leon v. Martinez, 84 NY2d 83, 87-88 (1994).

Dismissal pursuant to CPLR 3211 (a) (1) is

warranted only if the documentary evidence

submitted conclusively establishes a defense to

the asserted claims as a matter of law (id. at 88).

To defeat a pre-answer motion to dismiss the opposing party need only assert facts which "fit within anycognizable legal theory [internal citation omitted]." Bonnie & Co. Fashions, Inc. v Bankers Trust Co., 262 AD2d 188, 188 (1st Dept 1999). Furthermore, if any question of fact exists with respect to the meaning and intent of the contract in question, based on the documentary evidence supplied to the court, a dismissal pursuant to CPLR3211 (a)(1) is precluded. Khayyam v Doyle, 231 AD2d 475 (1st Dept 1996).

CPLR 213(2) establishes a six-year statute of limitations for causes of action based on contracts.

In the instant matter, defendant's arguments rest on the judicial application of the so-called "pet law" (Administrative Code of the City of New York § 27-2009) to cooperatives. Seward Park v Cohen, 287 AD2d 157 (1st Dept 2001). Pursuant to the pet law, if a tenant in a multiple dwelling harbors household pets openly and notoriously for a period of three months or more, and the owner has knowledge of that fact, the owner may not commence a holdover proceeding to enforce rules regarding pets if such proceeding is not initiated within the three month period. However, the Appellate Division, First Department, has specifically stated that the pet law

"is not applicable to condominiums, which are a form of fee ownership. We disagree with the Second Department that condominiums should be deemed coveredby the Pet Law because not explicitly excluded. It was because of the singular reference to leases or rental agreements in the warranty of habitability that welikewise refused to apply it to condominiums."

Board of Managers of the Parkchester North Condominium v Quiles, 234 AD2d 130, 130 (1st Dept 1996).

Consequently, defendant's argument that the action must be dismissed because it was not brought within the first three months of plaintiff being aware of the situation is without merit.

Additionally, defendant's argument that the action is time-barred by the statute of limitations is similarly meritless. If defendant's conduct were alleged only to be a contract violation, the six-year statute of limitations imposed by CPLR 213(2) would bar the action. However, where the alleged violation [*4]constitutes, not merely a violation of the By-Laws, but consists of conduct that may be causing an ongoing nuisance to other unit owners, that conduct amounts to a continuous or recurring wrong. 1050 Tenants Corp. v Lapidus, 289 AD2d 145 (1st Dept 2001).

"In such circumstances the wrong is not referable

exclusively to the day the original wrong was committed;

rather, a cause of action accrues anew every day, and

for each injury. The rule that a cause of action accrues

anew every day, or for each injury, applies whenever one

unlawfully produces some condition which is not necessarily

of a permanent character, and which results in intermittent

and recurring injuries to another. Like the maintenance

of a continuous nuisance, such conduct is not immune from

suit once it has continued past the limitations period

[internal quotation marks and citations omitted]."

Id. at 146.

Therefore, contrary to defendant's argument, where the unit owner's duty is a continuous one, the statute of limitations is not a defense to actions based on a breach of that duty occurring within the limitations period. Matter of Condo Units, LP v New York State Division of Housing and Community Renewal, 4 AD3d 424 (2d Dept 2004). Defendant's failure to cure the violation, despite being notified by plaintiff, constitutes a continuing wrong that is not dependent upon the day the original wrong was committed. Kaymakcian v Board of Managers of the Charles House Condominium, 49 AD3d 407 (1st Dept 2008).

Defendant's last argument with respect to her motion to dismiss relates to the three affidavits submitted with the motion which indicate that no vile odors were emanating from her apartment on the three days in which the inspections took place.

However, the cause of action is seeking enforcement of the condominium's By-Laws, which restrict the number of pets permitted to unit owners. Although the submitted affidavits may go to the merits of the action with respect to whether or not a nuisance has been created, it does not, at this stage, warrant dismissal of the action, but raises a question of fact.

"The 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 eliminate any material issues of fact from the case [internal quotation marks and citation omitted]." Santiago v Filstein, 35 AD3d 184, 185-186 (1st Dept 2006). The burden then shifts to the motion's opponent to "present facts in admissible form sufficient to raise a genuine, triable issue of fact." Mazurek v Metropolitan Museum of Art, 27 AD3d 227, 228 (1st Dept 2006); see Zuckerman v City of New York, 49 NY2d 557, 562 (1980). If there is any doubt as to the existence of a triable fact, the motion for summary judgment [*5]must be denied. See Rotuba Extruders v Ceppos, 46 NY2d 223, 231 (1978).

In the instant case, plaintiff's motion for partial summary judgment seeks a declaration of the rights of the parties, to the extent of a ruling that the condominium By-Laws have been violated. In this context, defendant admits that she does maintain more pets than are allowed by the condominium's rules, but asserts that plaintiff has waived the rule by knowing of the situation and by permitting other unit owners to maintain pets, which defendant alleges are also in violation of the two pet rule.

The fact that other unit owners may be harboring pets in violation of the condominium By-Laws is not a defense to the present action. Courts have rejected such selective enforcement defenses based on both waiver and estoppel. 1036 Park Corporation v Rubin, 92 AD2d 452 (1st Dept), affd 59 NY2d 877 (1983). Furthermore, Article XV, Section 5 of the condominium's By-Laws contain a non-waiver provision.

Defendant's conclusory statements with respect to plaintiff's knowledge and acquiescence are insufficient to defeat a motion for summary judgment. Grulton v City of New York, 297 AD2d 261 (1st Dept 2002). As a consequence, plaintiff's motion for partial summary judgment declaring that defendant has violated the condominium By-Laws by harboring more than the permissible number of pets is granted.

The initial motion filed by plaintiff seeks a preliminary injunction to restrain defendant from harboring more than one dog and two pets in total in her condominium unit. Plaintiff's cross-motion for partial summary judgment seeks a permanent injunction so restraining defendant.

A preliminary injunction is a drastic remedy which should be granted where the movant has demonstrated a clear legal right to the relief demanded based upon the undisputed facts. Scotto v Mei, 219 AD2d 181, 182 (1st Dept 1996). To be entitled to a preliminary injunction, the movant must show a probability of success, the danger of irreparable injury in the absence of an injunction, and a balance of the equities in its favor. Aetna Ins. Co. v Capasso, 75 NY2d 860, 862 (1990). If any one of these elements is missing, a preliminary injunction cannot be issued.

Plaintiff has clearly demonstrated a likelihood of success. Defendant has admitted that she knowingly violated the condominium rule, and courts have granted permanent injunctions for such violations. 1036 Park Corporation v Rubin, 92 AD2d 452, supra. However, plaintiff has failed to indicate any irreparable harm that it will suffer if the preliminary injunction is not issued.

"Irreparable injury," the second requirement that must be proved to allow for a preliminary injunction, is defined as "a [*6]continuing harm resulting in substantial prejudice caused by the acts sought to restrained if permitted to continue pendente lite ... . [W]here injunctive relief is to be granted, it is to be molded to fit the circumstances so as to preserve the status quo to the extent possible [internal citations omitted]." Societe Anonyme Belge D'Exploitation de la Navigation Aerienne (Sabena) v Feller, 112 AD2d 837, 840 (1st Dept 1985).

Plaintiff's arguments with respect to irreparable injury are conclusory statements that its failure to obtain a preliminary, and then permanent, injunction would diminish its ability to enforce condominiums rules. These conclusory assertions are insufficient to meet plaintiff's burden. See generally U.S. Re Companies, Inc. v Scheerer, 41 AD3d 152 (1st Dept 2007); Rick J. Jarvis Associates, Inc. v Stotler, 216 AD2d 649 (3d Dept 1995). Furthermore, "[i]t is settled that absent extraordinary circumstances a preliminary injunction will not issue where to do so would grant the movant the ultimate relief to which he or she would be entitled to in a final judgment." SHS Baisley, LLC v Res Land, Inc., 18 AD3d 727, 728 (2d Dept 2005).

Therefore, based on the foregoing, plaintiff's motion for a preliminary injunction is denied.

Accordingly, it is

ORDERED that defendant's motion to dismiss is denied; and it is further

ORDERED that plaintiff's cross-motion for a partial summary judgment is granted with respect to a declaration of the parties rights; and it is further

ADJUDGED and DECLARED that defendant has violated the condominium's two pet rule; and it is further

ORDERED that plaintiff's motion for a preliminary injunction is denied; and it is further

ORDERED that defendant is directed to serve an answer to the complaint within 10 days after service of a copy of this order with notice of entry.

Counsel for the parties are directed to appear for a preliminary conference on January 19, 2008 at 11:00 AM in room 335 at 60 Centre Street.

Dated: December 2, 2008

ENTER:

________________________

Walter B. Tolub, J.S.C.