440 W. 164th St. HDFC v De La Force
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440 W. 164th St. HDFC v De La Force 2013 NY Slip Op 32619(U) October 7, 2013 Sup Ct, NY County Docket Number: 653943/12 Judge: Peter H. Moulton 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 10/23/2013 1] INDEX NO. 653943/2012 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 10/23/2013 Supreme Court: New York County Part 40B --------------------------------------x 440 West 164th Street HDFC, Community Homes LLC, and Inna Khiterer and Andreas Kroll, Plaintiffs, -against- Index No. 653943/12 Michael De La Force, Individually, a/k/a Michael Shane Leforce, Individually, a/k/a Due Michael Shane De La Force, Individually, and Save Our Homes Corporation, Defendants. --------------------------------------x Peter H. Moulton, Justice This action arises from various disputes residential cooperative building in Manhattan. at an HDFC The action was transferred to me by Justice Kornreich in late 2012 as I had an Article 78 proceeding before me concerning a disputed election at the cooperative. action. After transfer, defendants moved to dismiss this In response, plaintiffs sought to discontinue the action without prejudice. with prejudice. Defendants state that any dismissal must be The parties have submitted letter briefs on this issue. After the motion to dismiss was filed, and after plaintiff sought to discontinue the action without prejudice, I issued a decision in the Article 78 proceeding dated July 2, 2013, finding 1 [* 2] in favor of the petitioner Michael De La Force, who is the main defendant in this action. Familiarity with the July 2nd decision is assumed herein. Defendants' motion to dismiss contains persuasive arguments demonstrating claims. the Plaintiffs legal insufficiency have made no of attempt most to of plaintiffs' oppose defendants' motion or to substantiate the causes of action set forth in the amended complaint. Instead, as noted above, they seek to discontinue without prejudice. BACKGROUND The cooperative 440 West 164 Street HDFC owns the building located at 440 West 164th Street in Manhattan. a low income Housing Development Finance The cooperative is Corporation ("HDFC") cooperative. This action, and the Article 78 proceeding decided in the July 2nd decision, both hinge in large part who among the parties was duly elected to the board of the cooperative. The cooperative's governing documents specify that the board shall consist of three shareholders. Article III section 8 of the by-laws provide that in order to serve on the board, and to vote in a board election, a shareholder must not be more than two months delinquent in payments due the corporation. Defendant Michael De La Force and plaintiff Ihna Khiterer were 2 [* 3] elected to the Board of Directors in an election held on June 22, 2011. A third alleged shareholder, nonparty Gregory Washington, was either elected to the board the same day, as alleged by De La Force, or appointed to the board by De La Force on September 10, 2011, as alleged by Khiterer. Washington apparently resigned from the board sometime in October 2011. On November 1, 2011, Khiterer, Kroll, St. Claire and alleged shareholder Carl Jeremy noticed a special meeting to be held on November 29, 2011. The notice stated that the. business at the meeting would be "[e]lecting a new Board of Directors." No other business was stated. In a letter dated November 2, 2011, De La Force informed Khiterer that she was excluded from the board pursuant to the bylaws because she had failed to pay maintenance to the cooperative for two months. For her part Khiterer avers that she resigned from the board on November 11, 2011 because of De La Force's alleged abusive behavior and ultra vires actions. A meeting contended that went the forward meeting on November 29, was properly called Khiterer 2011. and election conformed to the coop's governing documents. that the De La Force disputed the validity of the purported election on November 29. In the July 2~ decision the court agreed ~ith De La Force. Because the meeting was not properly noticed, and because it was not clear which shareholders were eligible to vote and/or serve on 3 [* 4] the board, I found for De La Force. I held that De La Force was not properly removed as a director, and that the respondents were not properly installed as directors, at the . Special Meeting convened on November 29, 2011. DISCUSSION CPLR 3217 (a) (1) discontinuance pleading is may filed. provides a filed be that any time Case at law makes notice of voluntary a responsive before clear that pleading" includes a pre-answer motion to dismiss. a "responsive An attempt at voluntary discontinuance will not be countenanced, where, as here, (~ it comes in the wake of a motion to dismiss. Penika Pty., 321 7 (a) , action, Ltd., 84 AD3d 703.) Except Rosenfeld v as provided by CPLR leave of court must be sought before discontinuing an and the court is empowered to set such "terms and conditions" on dismissal as are proper. De La oppose Force has expended the time and money necessary to an earlier application by plaintiffs for injunction, and now to bring the instant motion. a preliminary Defendants gave plaintiffs two adjournments to respond to the motion to dismiss. Plaintiffs have not submitted any opposition. The amended complaint manages to be both prolix, and, with respect to most of its causes of action, facially deficient. The sixth, seventh, ninth and twelfth causes of action are brought on 4 [* 5] behalf of the corporation. was at issue As Khiterer's status a~ board president in the Article 78 proceeding when she filed the amended complaint, plaintiffs' authority to bring these claims was dubious. After the amended complaint was served I held in the Article 78 proceeding that Khitterer was not prqperly elected to the board. bring Therefore, plaintiffs now clearly have no standing to these claims. Plaintiffs' initial complaint contained purported derivative claims, which they dropped in their amended complaint after Justice Kornreich pointed out the claims' varied infirmities. Plaintiffs' defamation claims are poorly drafted. Most of the claims arise from statements made within the context of litigation. y Such statements are clearly privileged. P.C. v Margrabe, 38 AD3d 163.) made outside of judicial, (See Sexter l:::Warmflash, The alleged defamatory statements or quasi judicial, proceedings, are either not set forth with any clarity or are simple expressions of opinion. Plaintiffs' fifth cause of action, alleging' abuse of process and malicious prosecution do not set forth all the elements of those claims. De La Force's actions in bringing an HP action in Housing Court clearly had merit and was not motivated by actual malice. (See Villacorta v Saks, Inc., 32 Misc3d.1203[A] .) The only claims brought by plaintiffs that have any facial validity are the claims by plaintiffs that they were allowed by the 5 ~ [* 6] building's board to sublet their apartments and De La Force took action to interfere with those sublets. Plaintiffs claim that they lost revenue because of De La Force's actions. ~he cooperative's governing documents at least arguably allow subletting in certain situations. CONCLUSION Because of plaintiffs' eleventh hour attempt to discontinue, and the patent invalidity of most of their causes of action, the court grants leave to discontinue only on the following conditions. All causes of action are discontinued with prejudice, exception of first, second, and third causes of action, which are discontinued without prejudice. moot. with the Defendants' motion to dismiss is The branch of defendants' motion seeking sanctions pursuant to 22 NYCRR § 130-1.1 is denied. While plaintiffs' causes of action, and their behavior in prosecuting this law'sui t, bordered on frivolous, the court cannot find that plaintiffs crossed the line set by§ 130-1.1. This case is discontinued. This constitutes the decision and order of the court. DATE: /:;2?.£..~.:..~~,,---=====-======-- October 7, 2013 A. J. S. C. HON. P.&I'ER H. MOULTON SUPREME COURT JUSTICE 6
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