Romeo v Barrella

[*1] Romeo v Barrella 2009 NY Slip Op 52819(U) Decided on November 16, 2009 Supreme Court, Westchester County Loehr, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 16, 2009
Supreme Court, Westchester County

Donna M. Romeo, Plaintiff,

against

Ryan Barrella, SANDRA BARRELLA, PIETSCH GARDENS COOPERATIVE, INC., PIETSCH GARDENS COOPERATIVE BOARD OF DIRECTORS, TOWN OF NORTH SALEM; PUTNAM COUNTY SAVINGS BANK, Defendants.



3087/08



HAL B. GREENWALD ESQ.

Attorney for Plaintiff

35 East Grassy Sprain Road

Yonkers, NY 10710 GOODFARB & SANDERCOCK, LLP

Attorneys for Defendants Barrella

235 Main Street, Penthouse Suite

White Plains, NY 10601

THOMAS M. BONA, P.C.

Attorneys for Defendants Pietsch Gardens

123 Main Street

White Plains, NY 10601

Gerald E. Loehr, J.

The following papers numbered 1- 9 were read on the motion of Defendants Ryan Barrella and Sandra Barrella (collectively, the "Barrellas") and the motion of Defendants Pietsch Gardens Cooperative, Inc. and Pietsch Gardens Cooperative Board of Directors (collectively, "Pietsch Gardens") for an order granting each such Defendant summary judgment dismissing the Complaint.

Papers Numbered

Notice of Motion(Barrellas) - Affidavit - Exhibits1

Memorandum of Law in Support2

Notice of Motion(Pietsch Gardens) - Affidavit - Exhibits3

Affirmation in Opposition to Barrellas - Exhibits4

Corrected Affirmation in Opposition -Exhibits5

Affidavit in Opposition to Pietsch Gardens - Exhibits6

Memorandum of Law in Opposition7

Reply Affirmation(Barrellas) - Exhibit8

Reply Affidavit(Pietsch Gardens) - Exhibits9

Upon the foregoing papers, it appears that Pietsch Gardens is a parcel of real property consisting of approximately 19.289 acres on the shore of Peach Lake in the Town of North Salem, New York. In the 1930's , the Pietsch family, which owned Pietsch Gardens, developed it as a summer resort community by leasing building sites in the Gardens to tenants for a short span of years. The tenant, in turn, erected a cottage or house on his leased land. In 1979, the Gardens was converted to a cooperative. Pietsch Gardens is now a land cooperative formed pursuant to an offering plan filed with the State of New York in 1979. Pursuant to the Pietsch Gardens' enabling documents, a person purchasing into Pietsch Gardens would obtain title to the structure on a specific lot. The purchaser would not obtain title to the lot, which remained in the Cooperative. Instead the purchaser was issued a Proprietary Lease by Pietsch Gardens pursuant to which the purchaser was granted the exclusive right to occupy and use that particular lot. As set forth in the Offering Plan, the then original members voted, for financial reasons, not to perform any surveys of the interior of the grounds, in other words, the individual lots, but only of the exterior boundary of the Gardens, The size and configuration and limitation of each lot assigned a lease was established by the homeowners staking the boundaries and property limits.

By a Deed dated September 5, 2001, Plaintiff purchased the house/cottage known as 38 [*2]Cottage Lane in Pietsch Gardens. The Deed recited: "IT IS EXPRESSLY UNDERSTOOD AND AGREED, that this sale is for personal property only as described above, and does not include nor is it intended to include the land or real estate on which said personal property is located, SAID LAND BEING OWNED IN FEE BY PIETSCH GARDENS COOPERATIVE, INC. . . ." By virtue of such purchase, Plaintiff was granted a Proprietary Lease for the land surrounding 38 Cottage Lane as more particularly described as: "Block No. 11781 Lot 2, 26.0 ft width X 62.0 ft Depth . . . it being agreed that no accurate survey exists and the measurements and location are approximate."[FN1]

The Barrellas acquired 40 Cottage Lane on March 5, 2007.[FN2] 40 Cottage Lane is adjacent to 38 Cottage Lane. As set forth in Plaintiff's affidavit, from the time she acquired 38 Cottage Lane until the Barrellas acquired 40 Cottage Lane, Plaintiff had sole use of the of the approximately two feet between the two cottages, which, based on the description in the Proprietary Lease, she believed she owned . In and around 2008, the Barrellas asked Pietsch Gardens to locate the boundary between these two leaseholds. Pietsch Gardens then placed a stake delineating the property line adjacent to Plaintiff's cottage, thus putting these two feet within the Barrellas' leasehold.

Plaintiff then commenced this action. The Complaint sets forth two causes of action. The First seeks a declaratory judgment pursuant to RPAPL Article 15 that Plaintiff is the rightful lessee of the 26 foot by 62 foot plot of land that surrounds 38 Cottage Lane — which the Court understands to mean the two feet between the cottages.[FN3]

In support of their motions for summary judgment, the movants have submitted the affidavits of Ellen V. Scott ("Scott"), Robert J. Ranalli ("Ranalli") and John J. Byrne ("Bryne"). Scott's grandparents built 38 Cottage Lane in the 1930's. After the death of her grandparents, the house was inherited by Scott's mother and then purchased by Scott. Scott was familiar with 38 Cottage Lane, having visited her grandparents there as a child and having lived there from 1975 until 2001 when she sold it to Plaintiff. Ranalli's grandparents built 40 Cottage Lane in the 1930's and Ranalli lived there from 1957 to 1963. Beginning in 1942, Byrne was a frequent visitor to 40 Cottage Lane, having grown up with the Ranalli's son. All three were uniform in their recollection of the layout and foot print of 38 and 40 Cottage Lane, to wit, the boundary was the [*3]outside of the edge of the cement block chimney on 38 Cottage Lane. In other words, it was their understanding, based on the conduct and understanding of the original owners who had set the boundary, that the area between the cottages was part of 40 Cottage Lane's leasehold.

In response, Plaintiff has submitted her affidavit that the boundary between 38 and 40 Cottage Lane was marked by a curb from which she would mark off the dimensions set forth in the Proprietary Lease . Plaintiff, who had no knowledge of how and where the original owners determined the boundary, submits no basis for this assertion. Petitioner also asserts that as Plaintiff's maintenance fees and portion of the real estate taxes are based on her number of shares of stock which in turn was based on the size of her lot, and that these fees cannot be changed, her lot size cannot be changed. The simple answer is that Plaintiff's lot is not being decreased; it never included land that Plaintiff mistakenly thought it did. Moreover, as set forth in the Offering Plan, the number of shares apportioned to each site was based on factors in addition to the size of the lot, such as view and terrain. Finally, Plaintiff argues that she was willing to hire a surveyor to measure the Proprietary Leases. Inasmuch as the Proprietary Leases do not contain a starting point for the admittedly estimated dimensions, one must question where a surveyor would measure from. In any event, Plaintiff is aware that she did hire a surveyor whose report was precluded due to Plaintiff's intentional decision not to produce it to the Defendants.

For the foregoing reasons, the First Cause of Action is dismissed.

The Second Cause of Action asserts that Pietsch Gardens has made numerous attempts to "disenfranchise and intimidate" Plaintiff and seeks damages therefor. Plaintiff first alleges that Pietsch Gardens, after promising to reimburse her for cleaning up a garbage can filled with human waste buried in the rear of her property, refused to reimburse her for such expense in the amount of $1,200. The evidence shows that on June 4, 2002, while doing excavation work at 40 Cottage Lane, a cesspool tank leaking sewage was discovered on such property. Two days later, Pietsch Gardens directed that the property owner immediately remedy the condition. For reasons that are not clear, Plaintiff took it upon herself to have the tank removed. Be that as it may, Plaintiff concedes she was reimbursed for this clean up in September 2002 after 40 Cottage Lane was sold.

Plaintiff next alleges that Pietsch Gardens improperly threatened to cancel her Proprietary Lease after she contacted the Health Department and Allied Pollution concerning what she believed to be "illegal and improper" digging with respect to Pietsch Garden's water mains. There is no evidence that Pietsch Gardens threatened to cancel her Proprietary Lease after she contacted the Health Department. What the evidence shows is that on November 14, 2005, Pietsch Gardens sent Plaintiff the following letter:

"It has come to the attention of the Board of Directors that you have been repeatedly calling Allied Pollution, the private contractor employed by Pietsch Gardens Cooperative to oversee the Cooperative's water system.

"You have proceeded to take community matters into your own hands and are attempting to handle the management of this corporation as an individual stockholder. The Board of Directors shall be responsible for the operation of the water system as defined in your Proprietary Lease

***

"Please be advised that should you continue to interfere with the management of Pietsch [*4]Gardens Cooperative, the Board of Directors will be obligated to proceed with the cancellation of your lease as provided in Section 10.A(3) Improper conduct by you or other occupant of the Premises, affirmed by a two-thirds (2/3rds) vote of the Stockholders."

Plaintiff next alleges that when she tried to purchase 40 Cottage Lane, Pietsch Gardens circulated her personal financial information throughout the Pietsch Gardens community. In support of its motion, Pietsch Gardens has submitted the letter, dated June 22, 2006, in which Plaintiff's then attorney wrote to Pietsch Gardens stating that upon "further investigation into this matter . . . it remains our understanding that no financial information was, or will be, disclosed."

Thus, Pietsch Gardens has established that, with the exception of the November 14, 2005 letter, the allegations in the Complaint are untrue.[FN4] As to such letter, the business judgement rule prohibits judicial inquiry into Cooperative Board actions that are made in good faith and in legitimate furtherance of corporate purposes (40 West 67th Street v Pullman, 100 NY2d 147, 156 [2003]; Levendusky v One Fifth Ave. Apartment Corp., 75 NY2d 530, 538 [1990]; Sirianni v Al Rafaloff, 284 AD2d 447,448 [1st Dept 2001]). Plaintiff has not shown the slightest indication of any bad faith, arbitrariness, favoritism or malice on the part of Pietsch Gardens in sending this letter. Based thereon, the Second Cause of Action is dismissed.

For the foregoing reasons, the Complaint is dismissed as to the moving Dedendants.

Dated: White Plains, New York

November, 2009

____________________________

Hon. GERALD E. LOEHR

Acting J. S.C. Footnotes

Footnote 1: The Proprietary Lease commenced on September 2, 2001 and ends on July 31, 2083.

Footnote 2: The Proprietary Lease commenced on march 5, 2007 and ends on July 31, 2083.

Footnote 3: The First Cause of Action also sought to compel the Barrellas to remove a portion of an enclosed room and discontinue any further construction with respect thereto as encroaching on Plaintiff's leasehold. Plaintiff initially sought a preliminary injunction with respect to such claim. That application was denied by this Court upon the finding that the construction did not change the foot print of the Barrellas' cottage. Thereafter, on June 10, 2008, in a zoning proceeding involving Plaintiff and the Barrellas, Plaintiff through counsel conceded that the construction did not encroach or restrict Plaintiff's egress. Based thereon, the Court assumes that portion of the First Cause of Action is withdrawn together with the prayer for injunctive relief with respect thereto.

Footnote 4: The other allegations in the complaint are too frivolous to discuss.