Kurland v Agresti
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Kurland v Agresti 2012 NY Slip Op 33447(U) June 22, 2012 Supreme Court, New York County Docket Number: 114095/2011 Judge: Anil C. Singh Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 06/25/2012 1] INDEX NO. 114095/2011 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY 06/25/2012 HON. ANIL C. SINGH PRESENT: PART - - 6( SUPREME COURT JUSTICE Justice INDEX NO. rj_l_'t_?!!lS ~)I MOTION DATE _ _ __ ·V· MOTION SEQ. NO. The following papers, numbered 1 to _ _ , were read on this motion to/for Notice of Motion/Order to Show Cause - Affidavits - Exhibits - - - - - -I - -_ _ _ __---No(s) . I No(s). _ _ _ __ I No(s). _ _ _ __ Answering Affidavits - - E x h i b i t s - - - - - - - - - - - - - - - Replying A f f i d a v i t s - - - - - - - - - - - - - - - - - - - - Upon the foregoing papers, it is ordered that this motion is _fJ,., - 00 I n_ 11 - ~ ;_ ......-, w (.) DECIDED ~N ACCORDANCE WITH ACCOMPANYING DECISION I ORDER-- t= Cl) ., :::> ~ 0 w n:: 0:: w w u. 0:: >- ~ z ...J ...J :::> 0 u. Cl) 1--< (.) w w 0:: ~ (!) w z a:: S': Cl) - 0 w ...J rn ...J < 0 (.) u. z 0 t= ~ I- 0:: ~~c ros 0 0 :E u. Dated: ' / Z.. I z. fc L... 1. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: ........................... MOTION IS: 3. CHECK IF APPROPRIATE: .............................................:. HON. ANIL C. S SUPREME COURT 0 0 0 ~-FINAL DISPOS CASE DISPOSED GRANTED 0 DENIED SETTLE ORDER ODO NOT POST 0 0 N [J OTHER GRANTED IN PART - I []SUBMIT ORDER FIDUCIARY APPOINTMENT - 0 REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 61 ---------------·---------------------------x SAMANTHA KURLAND, DECISION AND ORDER Plaintiff, -against- Index No. 114095/11 PAUL AGRESTI, THE BOARD OF DIRECTORS OF CAST IRON CORP, and CAST IRON CORP, Defendants. 1 --------------------------------------------x HON. ANIL C. SINGH, .J.: Defendants The Board of Directors of Cast Iron Corp.· Board) and Cast Iron Corp. (a) ( 5 ). and ( 7) , (Cast Iron) move, pursuant to CPLR 3211 for an order dismissing the complaint and the cross claims alleged by the (the Paul Agresti. co-defend~nt owner and manager of the Cast Iron is co-operative. building located at 67 East 11th Street in Manhattan. (Building) The Board is the elected board of directors of the co-operative. Plaintiff and Agresti own the shares appurtenant to, respectively, apartment 302 and apartment 303 in the Building. The complaint alleges three causes of action against Agresti and the following six causes of action against the Board and Cast Iron: (4) breach of contract; of habitability fiduciary duty; (see Real (5) breach of the statutory warranty Property Law § ' 235-b); (6) (7) a request for injunctive relief; breach of (8) a request for a declaratory judgment; and (9) a demand for attorney's fees, pursuant to Real Property Law (RPL) cross claims fiduciary duty; allege: (1) breach § of 234. contract; (3) breach of the warranty of 1 Similarly, Agresti's (2) breach habitabi~ity; of (4) a [* 3] ., 1! ( 5) . a request for injunctive relief; reque'st. for a declaratory ~ ' judgment; and (6) a dema!ld for attorney's fe.es. The situation giving rise to this action began in 2002, when the previous owner of the shares appurtena~t nonparty Douglas Gaccione, undertook a which included, spiral renov~tion insofar as is relevant here; staircase leading to the to apartment 302, of his apartment the demolition of a apartment's loft, and its ,. replacement with a new floor-to-ceiling staircase (the Staircase) ·' that was aff~xed to, or immediately adjacent~to, the demising wall between apartments 202 and .203. Agresti alleges that renovation was overseen by the building sup~rintendent, the nonparty ·~ Miguel Garcia, who supplied workers for the project, and that, once the Staircase was anyone walking on it would cause the completed~ Ii demising wall to vibrate noisily. Agresti also alleges that the problem became worse after plaintiff moved .~n, in December 2005. The belief complaint alleges on information and that the installation of the Staircase, in 2002, was performed according to " specifications approved by the ··Board> and that, upon completion, ,, the Staircase was inspected an~ that purpose by the Board .. immediately after approved by 'a person employed for The complaint a'i1eges, plaintiff purchased her in sum, apartment, that, Agresti undertook a campaign of harassment .against plaintiff, banging on !i her wall, playing his television set at extremely high volume, and ' ' shouting obscenities at her -through her bedroom wall, when she attempted to' se11· her apartment .i!l 2009, and that, and again in ,, 2011, Agresti repeatedly sabotaged the attempt, 2 / for example,, by [* 4] overturning the furniture on his terrace and covering the terrace with empty beer bottles, plaintiff had Plaintiff also engaged ~lleges had to the to that, on extent cancel a that the scheduled three:occasio~s, real tor whom open house. she sought to have the problem posed by the Staircase remedied at her expense. February 2011, plaintiff moved to Florida. In Her apartment, on which she continues to pay maintenance, remains unsold. ' As the moving defendants repeatedly emphasize, their motion to dismiss the complaint depends largely upon their contention that, because the Staircase, which they call "Kurland's Staircase," is not part of the common elements of the building, and is situated entirely within plaintiff's apartment, they are not responsible for the problems that have been caused by its construction. that is their sole argument for causes of action. di~missing Indeed, the seventh and eighth Paragraph 2 of the standard proprietary lease for apartments in the Building provides that: [t]he Lessor [Cast Iron] shall at its.expense keep in good repair all of the building including all of the apartments and its equipment and apparatus except those portions the maintenance and repair of which are expressly stated to be the responsibility of the Lessee pursuant to paragraph 18 hereof. · Fraenkel Affirm:, Exh. C, at 166 (emphasis added). the proprietary lease provides, Paragraph 18 of insofar as movants rely upon it, that: The Lessee shall be responsible for maintaining and repairing the improvements affixed to any roof area, terrace balcony or yard which is appurtenant to Lessee's apartment and for Lessee's exclusive or substantially exclusive use and shall be responsible for any damage caused to such areas, the building or any other apartment by such improvements ... 3 [* 5] Id. at 174. While it is undisputed that the Staircase is for the exclusive use of plaintiff and her guests, it is equally undisputed that the Staircase is not "affixed to any roof area, terrace balcony or yard which is appurtenant to [plaintiff's] apartment." The court notes that paragraph 18 also provides that "[t]he Lessee shall keep the interior of the apartment (including interior walls, floors and ceilings .. ;) consultants and in good repair reports engineers' attached However, II to plaintiff's affidavit, and quoted in the complain_t, indicate that the cause of the noise and vibration associated with the Staircase may well be located outside the inner perimeter of plaintiff's apartment, and Agresti alleges that an engineer who examined the demising wall in 2002 recommended that the wall be strengthened by, doubling the number of internal studs. at least, The phrase, "the interior of the apartment," in paragraph 18, hardly includes the design and construction of the demising walls that separate two apartments. Accordingly, the moving defendants have not established that the Staircase is· "expressly stated to be the responsibility of the lessee," in paragraph 18 of the proprietary lease, and that, therefore, it is not the responsibility of ~ast Iron, pursuant to . ' paragraph 2, to keep plaintiff's apartment and a staircase, without which the loft space would be unusable, "in good repair." Movants' specific arguments are that the breach of .contract and breach of fiduciary duty claims are time-barred, and that the breach of fiduciary duty, breach of warranty of habitability, injunction, and declaratory judgment claims fail to state a claim. ' 4 [* 6] This case was commenced on December 15, 2011, with the filing of the summons and complaint. The exact date in December 2005 when plaintiff purchased her apartment is not in the record, but that is irrelevant to the disposition of the instant motion, because plaintiff alleges a continuing wrong on the part of the Board and Cast Iron, and accordingly, a new cause of action for breach of contract and breach of fiduciary duty arose each' day that they failed to remedy the problems caused by the construction of the Staircase. See Knobel v Shaw , 90 AD3d 493 (1st Dept 2011); Kaymakcian v Board of Mgrs. of Charles House Condominium, 49 AD3d 407 (1st Dept 2008) (continuing failure to fulfill duty to repair constitutes a continuing wrong) . alleging breach of contract, Accordingly; neither the claim which is governed by the six-year ' limitations period set forth in CPLR 213 (2), nor plaintiff's claim for breach of fiduciary duty, limitations period, because the complaint primarily seeks money damages (Knobel v Shaw, The moving themselves. which is governed-by a three-year 90. AD3d 493, supra), is untimely. defendants draw However, plaintiff's no legal proprie~ary distinction between lease constitutes a contract between her and Cast Iron. Plaintiff has not shown any contract between her and the Board. ,Accordingly, the breach of contract claim must be dismissed, as against the Board. moving defendants cite Black v 22321 Owners Corp. [A], 2011 Slip Op 50487 [U] 1Sup Ct, While the (31 Misc 3d 1204 NY County 2011]) for the proposition that the managing agent of a co-operative, does not owe a fiduciary duty to the individual tenants of the building, I 5 the [* 7] Appellate Division, First Department has held that 11 [o]wners of a fractional interest in a common entity ar·e owed a fiducic:try duty by its manager. 11 Yuko Ito v Suzuki, 57 AD3d 205, 208 (1st Dept 2008). Accordingly, the claim alleging breach of fiduciary duty is viable both as against Cast Iron, the manager of the co-operative, and as against the Board, tenant. which assuredly has fiduciary duties to each See e.g. Wirth v Chambers-Greenwich Tenants Corp., 87' AD3d 470 (1st Dept 2011) . ' Citing Halkedis v Two E. 'End Ave. Apt. Corp. (i61 AD2d 281 [1st Dept 1990]), the moving·defendants argue that, as a matter of law, plaintiff cannot prevail on _her breach of the warranty of I habitability claim, because she vacated her apartment in February 2011. InHalkedis, the plaintiff had never lived in the apartment . ......, See also Frisch v Bellmarc Mgt. , 190 AD2d 383 (1st Dept 1993). However, a tenant who has resided in an apartment, but then moves out, may recover damages for breach of the warranty of habitability for the period that he or she was in·. residence. E. 86th St., Leventritt v 520 266 AD2d 45 (1st Pept 1999) The court notes that most of the factual allegat~ons that explicitly underpin plaintiff's causes of action for breach of contract, breach of fiduciary duty; an~ breach of the warranty of habitability, as well as the stated grounds for the injunction that she requests are that, despite having been repeatedly asked to do so_, neither Cast Iron, nor the Board, required Agresti to comply with various house rules and portions of Agresti's proprietary lease that plaintiff alleges him 6 to have repeatedly violated. [* 8] Plaintiff has not alleged, and there appear to be no grounds upon which she could do so, that she is a Agresti's proprietary lease. third~party beneficiary of As for the house rules, paragraph 13 of the proprietary lease provides that, while a violation of the house rules constitutes a default under the lease, "[t]he Lessor shall not be responsible to the Lessee for the nonobservance or violation bf House Rules by any other lessee or person:" Fraenkel Affirm., Exh C, at 169. However, the complaint also alleges that, by failing to enforce the provisions of Agresti's proprietary lease and the house rules against Agresti, Cast Iron and the Board have denied plaintiff the quiet enjoyment of· her apartment, in violation of paragraph 10 of her, proprietary lease, and that, "[t]o the extent the perceived noise/vibration condition may ~e to the related [Staircase]," it is the responsibility of Cast Iron and the Board to cure that Accordingly, Fraenkel condition. the Affirm., complaint adequately alleges fourth through the sixth, and the eighth, c~uses Exh. a A, at 13. basis for the of action. The moving defendants \(lo not contend that the ninth cause of action (for attorney's fees) must be dismissed, if either the ' breach of contract claim; or that alleging breach of the warranty of habitability, dismissed. dismissed. However, survives. Accordingly, Neither of those claims. is being the ninth cause of action will not be \ plaintiff's seventh cause of action) request for inj~nctive relief (the is being dismissed, because it seeks to 7 [* 9] compel Cast Iron and the Board to require Agresti to comply with his own proprietary lease, and with various house rules. Plaintiff has failed to allege any irremediable harm that is likely to befall ,/ her absent Agresti, injunctiv~ relief. Indeed, plaintiff's claims against which include a claim' for common-law nuisance, and her substantive claims against the moving defendants, seek to have her made whole for her inability to sell ~er apartmei:~· In their reply memorandum of law, moving defendants argue that the complaint is barred by the business judgment doctrine. The business_ judgment doctrine is inapplicable to a claim alleging the breach of a proprietary lease. _Fund Corp., -74 AD3d 494 Corp., 257 inapplicable AD2d 218 to a King v 870 Riverside Dr. Haus. Dev. (1st Dept 2010); Dinicu v Groff Studios (1st Dept 1999). claim alleging a It is, breach of perforce, the also covenant of habitability, because that covenant is deemed a part of every lease for residential premises. RPL § 325-b. While the business judgment rule may ultimately provide a defense against plaintiff's cause of- action al~eging a breach of fiduciary duty, the moving defendants' blanket invocation of the rule, without any discussion of its applicability to specific allegations in the complaint, and ' its basis in a repetition that_ the Staircase is plaintiff's property and her responsibility, is not grounds for dismissing that cause of action at this time. A~resti's cioss claims allege a continuing failure,- on the part of Cast Iron and the Board, to remedy the cause of the noisy vibration of his wall. Accordingly, his cross claims are no more 8 [* 10] time-barred than the complaint is.l The first three cross claims, to wit, breach of contract, breach of fiduciary duty, and breach of the statutory warranty of habitability, mirror the similar causes of action in the complaint in that they are predicated on an alleged failure to enforce against plaintiff her proprietary lease and various house rules. Like'the similar causes of action in the complaint, the first three counterclaims are viable, based upon the . factual allegations that the moving defendants failed to remedy the cause of the noise and vibration in Agresti's apartment. I Agresti's fourth cross claim seeks an injunction barring Cast Iron and the [plaintiff's] adjudicated." presumably, Board . from approv.ing 11 any apartment unless and until Inasmuch indifferent as as Cast to sale this Iron and whether or lease lawsuit the is Board plaintiff of fully are, sells her apartment, this claim is no more than' an indirect attempt to force plaintiff to undertake whatever structural work may be required to abate the noise and vibration in Agresti's apartment. Even were 'I this a proper use of the injunctive power, and it is not, Agresti has .not alleged that plaintiff can lawfully undertake such work. The fifth cross claim is for a judgment declaring who, as between plaintiff and the moving defendants, is obligated to remedy the cause of the noisy vibration of, Agresti's wall. A declaratory ju.dgment is available. only where there is [ ... ] dispute 11 'a real [ ... ] between parties with an existing jural relationship. Sec. LLC v Knight Equity Mkts~ L.P., 1 11 34 AD3d 389, 390-391 (1st Dept 2006), quoting Kyle v Kyle,111 AD2d 537, 538 (3d Dept 1985). 9 Pearl Here, [* 11] Agresti is not a party to the dispute the resolution of which he I seeks. Indeed, he expressly disclaims any interest in the outcome of that dispute. Accordingly, the fifth cross claim is being dismissed. Accordingly, it is hereby ORDERED that the motion to dismiss is granted to the extent that the claim for breach of contract in the complaint and the cross claim defendant The for breach of Board of contract Directors of are Cast d'ismissed, Iron as Corp. , against and the seventh cause of action in the complaint and the fourth and fifth cross claims are dismissed, and the motion is.otherwise denied. _J. ENTER: 10
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