Bedke v Chelsea Gardens Owners Corp.

[*1] Bedke v Chelsea Gardens Owners Corp. 2010 NY Slip Op 50720(U) [27 Misc 3d 1212(A)] Decided on March 25, 2010 Supreme Court, New York County Rakower, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through April 27, 2010; it will not be published in the printed Official Reports.

Decided on March 25, 2010
Supreme Court, New York County

Katherine Bedke, JACK CHEN and RICHARD SLOTE, Plaintiffs,

against

Chelsea Gardens Owners Corp., MARLITE CONSTRUCTION CORP., RUDD REALTY MANAGEMENT CORP., ALEXANDER COMPAGNO & ASSOCIATES, ENGINEERING SOLUTIONS, PLLC; WILLIAM CANDILOROS, HALIA CHUDYK, MARK GILBERT NEARY (a/k/a GIL NEARY), HAL MOSKOWITZ, JOHN RYAN, DAVID SHEAR, MATTHEW A. WOOLF, Individually and as Members of the Board of CHELSEA GARDENS OWNERS CORP., JOHN DOE, JANE DOE AND XYZ CORP., Defendants.



601112/09



Counsel for Plaintiffs: Joel M. Lutwin & Aaron L. Lebenger

Counsel for Defendant Chelsea Gardens Owners Corp.: Robert I. Cantor of Cantor Epstein & Mazzola, LLP

Eileen A. Rakower, J.

Plaintiffs are all owners of co-op units located on the first floor of a building located at 250 West 24th Street in the County and State of New York ("the building"). Plaintiff Kathryn Bedke ("Bedke") is the owner of apartment 1-CE, plaintiff Jack Chen ("Chen") is the owner of apartment 1-CW, and plaintiff Richard Slote ("Slote") is the owner of apartment 1-BE. Defendant Chelsea Gardens Owners Corp. ("Chelsea Gardens") is a cooperative corporation. Defendant Marlite Construction Corp. ("Marlite") is the general contractor of a project ("the Basement Project") being undertaken in the basement of the building. Defendant Rudd Realty Management Corp. ("Rudd") is the managing agent of the building. Defendant Alexander Compagno & Associates ("Compagno") is an architectural firm and defendant Engineering Solutions, PLLC ("Solutions") is a structural engineering firm, both hired for the basement project. Defendants William Candiloros, Halia Chudyk, Mark Gilbert Neary, a/k/a Gil Neary, Hal Moskowitz, John Ryan, David Shear and Matthew A. Woolf are board members who also reside in the building ("the board").

Plaintiffs allege the following causes of action: first, a Breach of Proprietary Lease by [*2]Chelsea Gardens; second, a Breach of Warranty of Habitability by Chelsea Gardens; third, a Breach of Written and Oral Representations by Chelsea Gardens and the board; fourth, the Fraudulent Misrepresentation of Chelsea Gardens and the board; fifth, the Negligent Misrepresentation of Chelsea Gardens and the board; sixth, the Negligence of all defendants; seventh, the Gross Negligence of Chelsea Gardens, the board, Rudd and Marlite; eighth, the Nuisance of all defendants; ninth, the Trespass of all defendants; tenth, the Breach of Fiduciary Duty by Chelsea Gardens and the board; eleventh, the Aiding and Abetting Breach of Fiduciary Duty of Rudd; twelfth, for an Accounting of the Basement Project; and thirteenth, for a Preliminary Injunction against Chelsea Gardens and Marlite.

Plaintiffs Bedke and Chen are seeking reimbursement of their maintenance payments from September 2008 until November 2009, reimbursement for cleaning products and ruined clothing, air purifiers, storage costs, legal costs and "additional non-maintenance damages [which] will be submitted at the appropriate time." Plaintiff Slote is seeking reimbursement of his maintenance payments from September 2008 to May 2009 and costs for rug cleaning and air purifiers.

After a series of hearings were held on April 22, 2009, April 28, 2009 and May 4, 2009 [FN1] before the Honorable Walter A. Tolub, Chelsea was directed to undertake multiple safety, dust control, noise control, and cleaning measures with regard to the Basement Project.[FN2] Plaintiffs now move this Court for partial summary judgment on the issue of liability on their first and second causes of action only. Chelsea Gardens opposes.

The Coop consists of two buildings, separated by a courtyard. The north building fronts West 24th Street (the subject building), while the south building fronts 23rd Street. The buildings are more than 70 years old and the floors, and their supports, were all constructed of wood. At a series of board meetings held in 2002, the problem of a "sinking floor" in plaintiff Jack Chen's 1st floor apartment was discussed. In 2005, Ronald P. Erickson, P.E. inspected plaintiff Kathryn Bedke's apartment, also on the first floor, after Ms. Bedke discovered that the wooden floor in the bathroom beneath the tiles was badly deteriorated and full of holes. Mr. Erickson found that "there has been water damage over the years that rotted out the sub-flooring. Part of the floor beneath the bathtub was completely open." Mr. Erickson recommended, among other things, that the entire floor be replaced and that the wooden structure be reinforced.

In May 2007, the shareholders approved a project which included installing steal beams and other structural supports to reinforce the existing wooden framing. In order to fund the [*3]project, the shareholders approved the "creating [of] an apartment for the superintendent and additional habitable space" in the basement. The Basement Project commenced in August/September 2008. On January 14, 2009 a "partial" "Stop Work Order" was issued by the Department of Buildings ("DOB") because of a violation of Section BC3301.2 of the Administrative Code.[FN3] The Order applied to the "BASEMENT SOUTH/EAST CORNER." On March 4, 2009, a violation was issued to Marlite from the Department of Environmental Protection ("DEP") for an "Inadequate /Insufficiently detailed noise mitigation plan."

Plaintiffs, in support of their motion, submit: the affidavits of plaintiffs Bedke, Chen and Slote; the pleadings; a hearing transcript dated April 22, 2009; several exhibits that were admitted at the April 22, 2009 hearing; two DVDs contain video and still photos of the basement; the decision of Justice Tolub, dated May 8, 2009; the standard lease agreement between Chelsea and the co-op owners; printouts of several email correspondences; a handwritten letter sent from Ms. Bedke to a Board member, dated October 16, 2008; a copy of a "Stop Work Order," dated January 14, 2009; and a letter from plaintiff Richard Slote to Rudd. By way of reply, plaintiff submits two DVDs, one titled "Videos and Photos of Noise and Dust Nuisance Taken April 21, 2009," and the other titled "Videos of Noise and Smoke Nuisance."

Plaintiffs argue, in support of their motion, that the Basement Project has rendered their apartments uninhabitable. Specifically, plaintiffs claim that they have been subjected to, among other things, excessive dust and noise, vibration [from the use of jack hammers], noxious fumes, lack of heat, clanging pipes, welding smoke, and second-hand cigarette smoke (from the workers). All of this, plaintiffs claim, is occurring directly below their first floor apartments. Plaintiffs claim that the conditions were made worse by the fact that their floors are made of wood. Thus, due to the jack hammering, their floors pulled away from the walls, and cracks appeared in the plaster, exposing them to further noise, dust and noxious odors coming from the basement.

Plaintiffs assert that, given the evidence presented at the hearing in front of Justice Tolub, it is clear that Chelsea breached both the proprietary lease and the warranty of habitability, by subjecting plaintiffs to conditions that were dangerous, hazardous and detrimental to their life, health and safety.

Chelsea, in opposition, submits: the minutes of a board meeting held on February 21, 2002; and the report of Ronald R. Erickson, P.E., dated January 12, 2005. Chelsea first argues that the motion is premature as there is outstanding discovery. Specifically, Chelsea claims that plaintiffs, who are the only witnesses with personal knowledge of the conditions in the building, have not yet been deposed. In any event, Chelsea argues, there are multiple issues of fact [*4]precluding summary judgment such as: whether plaintiffs had no choice but to abandon the apartment, whether Chen and Slote's apartments were legally uninhabitable given that they continued to live in them; and whether plaintiffs claims of constructive eviction are viable considering that other "similiary situated" first floor tenants remained in their apartments during the construction.

The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law. That party must produce sufficient evidence in admissible form to eliminate any material issue of fact from the case. Where the proponent makes such a showing, the burden shifts to the party opposing the motion to demonstrate by admissible evidence that a factual issue remains requiring the trier of fact to determine the issue. The affirmation of counsel alone is not sufficient to satisfy this requirement. ( Zuckerman v. City of New York, 49 NY2d 557 [1980]). In addition, bald, conclusory allegations, even if believable, are not enough. (Ehrlich v. American Moninger Greenhouse Mfg. Corp., 26 NY2d 255 [1970]). ( Edison Stone Corp. v. 42nd Street Development Corp.,145 AD2d 249, 251-252 [1st Dept. 1989]). The affirmation of counsel alone is not sufficient to satisfy this requirement. (Zuckerman, supra).

Where facts essential to justify opposition to a motion for summary judgment are within the exclusive knowledge and possession of the moving party, summary judgment should be denied. ( See CPLR §3212[f]). In order for a motion to be denied on 3212(f) grounds, the opposition must offer more than mere hope that it might be able to uncover some evidence during the discovery process which will impeach the facts asserted by movant. See Pow v. Black, 182 AD2d 484 (1st Dept. 1992). Here, the discovery Chelsea claims is outstanding are the depositions of plaintiffs. However, plaintiffs testified under oath over the three day hearing held by Justice Tolub. At that time, Chelsea had the opportunity to cross examine each plaintiff. Neither does Chelsea submit documentation showing that it ever demanded or noticed the further depositions of plaintiffs. While Chelsea submits exhibits, it does not submit demands for discovery, notices or any discovery orders which may have been issued.

To make out a prima facie case of the breach of the covenant of quiet enjoyment, a tenant must establish that "the landlord's conduct substantially and materially deprived the tenant of the beneficial use and enjoyment of the premises. There must be an actual ouster, either total or partial, or if the eviction is constructive, there must have been an abandonment of the premises by the tenant." (Jackson v. Westminster House Owners, Inc., 24 AD3d 249,250[1st Dept. 2005]).

Plaintiff Chen testified that he stays in his apartment "about four nights a week," and spends the rest of the week at his upstate home. Slote testified that he uses his apartment "on average two nights a week." Bedke testifies that she is staying with a friend and that she has only stayed in her apartment about nine nights/days since October 2008. Although plaintiffs claim that they were forced to spend time away from their apartments because of the noise and dust generated by the basement project, "whether a landlord's renovation work is of such character as to justify a tenant's abandonment of the premises is normally a question of fact." (NYC Goetz [*5]Realty Corp. v. Martha Graham Center of Contemporary Dance, 39 AD3d 356[1st Dept. 2007]). Thus, plaintiffs' motion as to the first cause of action, must be denied as they have not established, as a matter of law, that they were constructively evicted from their apartments.

"Pursuant to Real Property Law §235-b, every residential lease contains an implied warranty of habitability which is limited by its terms to three covenants: (1) that the premises are "fit for human habitation," (2) that the premises are fit for "the uses reasonably intended by the parties," and (3)that the occupants will not be subjected to conditions that are dangerous, hazardous or detrimental to their life, health or safety." (Solow v. Wellner, 86 NY2d 582,587[1995]). "The trend in case law has been to interpret . . . section 235-b to include all tenants under its protective umbrella. Thus, in Suarez v. Rivercross Tenants' Corp., 107 Misc 2d 135[App.Term 1981], the Appellate Term, First Department, applied section 235-b to co-operative apartments."

"It is a patent impossibility to attempt to document every instance in which the warranty of habitability could be breached . . . [e]ach case must, of course, turn on its own peculiar facts." (Park West Management Corp. v. Mitchell, 47 NY2d 316[1979]). In Park West, the unionized maintenance and janitorial staff at plaintiffs' apartment building went on strike for 17 days. (Id. at 326). During that period, all incinerators were wired shut, forcing tenants to pile garbage outside. In solidarity with the strikers, Department of Sanitation workers refused to pick up the garbage, causing it to pile up to the first floor level. The decaying garbage began to give off noxious odors, necessitating the declaration of a health emergency by the City. Also during that 17 day period, extermination services were not performed, which led to a rat, roach and vermin infestation. (Id. at 326-327). The court, in upholding the affirmance of a lower court's determination that respondents were entitled to a ten percent rent abatement, held that:

under the facts presented here, respondents have proven that petitioner breached its implied warranty of habitability. As a result of the strike, essential services bearing directly on the health and safety of the tenants was curtailed, if not eliminated. . . the failure of petitioner to provide adequate sanitation removal, janitorial and maintenance services materially impacted upon the health and safety of the tenants . . .(Id. at 329).

The court went on to list those conditions which materially affect the health or safety of the occupants of a building, such as:

insect or rodent infestation, insufficient heat and plumbing facilities, significantly dangerous electrical outlets or wiring, inadequate sanitation facilities or similar services which constitute the essence of the modern dwelling unit (Id. at 328).

Here, plaintiffs primary complaint is that, due to jack hammering and welding occurring in the basement, they were exposed to excessive dust and noise and smelled smoke from the [*6]welding of manganese rods. Such exposure was exasperated by the fact that plaintiffs' floors are made of wood and there is no insulation between the floor and the ceiling of the basement. The dust and the noise permeated plaintiffs' apartments through cracks and holes in the floor, the very condition that necessitated the basement project in the first place. Indeed, plaintiffs' Architect, testified at the April 28, 2009 hearing, that those structural issues, which plaintiffs don't dispute Chelsea is attempting to remedy by shoring up the floors, could "very immediately endanger the health and safety of the occupants of the building."

Although plaintiffs have shown that the conditions at their apartments created disruptions to their daily lives, they fail to show, prima facie, that the conditions complained of were "detrimental to [their] li[ves], health or safety within the meaning of the statute. (Elkman v. Southgate Owners Corp., 233 AD2d 104,105[1st Dept. 1996]). The dust and noise conditions identified here are not of the kind that would "automatically" lead a "reasonable person" to conclude that plaintiffs were so deprived of essential functions that a breach of habitability has occurred. (see Park West). Indeed, "[w]hile it may be ultimately proven [at trial] that defendant[s] breached the implied warranty of habitability, the present record does not as a matter of law establish it." (Armstrong v. Archives, LLC, 46 AD3d 465,466[1st Dept. 2007]).

Further, the complaints of each plaintiff are individualized, since each plaintiff's experience of the construction work was different, depending what his or her proximity was to the ongoing work. Additionally, it is impossible to ascertain whether the alleged breach was ongoing, continuous or transient depending on the work in progress.

The prior inquiry of Justice Tolub, relating to the nature and extent of injunctive relief to be Ordered at the time of the original application does not affect the issue presently before the Court. Indeed, Justice Tolub stated in his decision

any and all relief granted herein is only for purposes of this motion and [] nothing stated herein shall constitute an admission of liability or fact of any party nor shall it in any manner limit, lessen, or otherwise affect any and all relief that might be sought herein in the underlying action in chief.

Wherefore it is hereby

ORDERED that the motion is denied.

This constitutes the decision and order of the court. All other relief requested is denied. [*7]

DATED: March 25, 2010_________________________________Eileen A. Rakower, J.S.C. Footnotes

Footnote 1:Justice Tolub visited the subject site on this date.

Footnote 2:Plaintiffs claim that, to date, defendants have not complied with all of Judge Tolub's directives. However, it is not clear what, if any, work is presently being performed or still needs to be performed in the future. Testimony at the hearing established that there will not be any further jack hammering, only "chipping."

Footnote 3: A violation was issued because workers were smoking at the construction site. The remedy was to "safeguard public and property by ensuring that no smoking occurs on the site."