Fleetwood Commons, Inc. v Fredericks

[*1] Fleetwood Commons, Inc. v Fredericks 2017 NY Slip Op 51543(U) Decided on November 16, 2017 City Court Of Mount Vernon Seiden, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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, 2017
City Court of Mount Vernon

Fleetwood Commons, Inc., Landlord-Petitioner,

against

Anna Marie Fredericks, Respondent-Tenant.



1712-17



Lewis Montana, Esq.

Levine & Montana

Attorneys for Petitioner

1019 Park Street

P.O. Box 668

Peekskill, New York 10566

Joseph Goubead, Esq.

Attorney for Respondent

22 West First Street

Mount Vernon, New York 10550
Adam Seiden, J.

In this holdover proceeding, the petitioner moves for summary judgment on its petition in which petitioner seeks repossession of the subject premises, reasonable attorneys fees and disbursements and use and occupancy for the months that respondent has held over in the premises. The respondent opposes the motion.

The respondent occupies Apartment D in the building located at 18-20 East Grand Street, Mount Vernon, New York pursuant to a proprietary lease. In the holdover petition, the petitioner seeks removal of the tenant from the apartment for failure to cure lease violations for which numerous Notices to Cure, dated May 30, 2012, August 5, 2014, November 25, 2015 and December 15, 2015, respectively, were served on respondent. The Notices to Cure state, in pertinent part, that respondent was in breach of paragraphs 13 and 18(b) of the Proprietary Lease and paragraph 4, 5 and 25 of the House Rules in that respondent and/or her guests made or permitted disturbing and/or unreasonable noises in the building or caused unreasonable interference with the rights, comfort or convenience of other lessees or residents or unreasonably [*2]annoyed them. A copy of the Proprietary Lease between petitioner and respondent is attached as Exhibit "A" to the Petition. The Notices to Cure further list the specific allegations of objectionable behavior and complaints lodged against the respondent. Notably, the last Notice to Cure served on respondent, dated December 15, 2015, listed 68 allegations and/or complaints of objectionable behavior by the respondent which violated the Proprietary Lease, some of which required police intervention. Moreover, said Notice to Cure required that the listed conditions be cured within 30 days of the date of service of the Notice to Cure on respondent, that being February 6, 2016, since the Notice to Cure was served on January 7, 2016, or the lease could be terminated and summary proceedings commenced. Copies of the Notices to Cure are attached to the Petition as Exhibits "B"- "E". Respondent failed to cure said violations.

Subsequently, in accordance with paragraph 31(f) of the Proprietary Lease and Article III of petitioner's By-Laws, by written notice petitioner called a special meeting of its Directors to be held on March 7, 2016 for the purpose to consider and act upon proposed resolutions concerning respondent's apartment, specifically whether respondent had engaged in objectionable conduct, whether respondent's tenancy was undesirable and whether her proprietary lease should be terminated and her shares sold at auction. A copy of Petitioner's By-Laws are attached to the petitioner's Notice of Motion for Summary Judgment as Exhibit "A". Respondent was mailed a copy of the notice. Respondent contacted petitioner and requested an adjournment of the meeting to obtain counsel. The meeting was adjourned to March 15, 2016 based upon respondent's request. Copies of the initial notice of the meeting and the correspondence acknowledging the respondent's request for an adjournment are attached to the Petition as Exhibits "F" and "G", respectively. The Special Meeting was held on March 15, 2016 at which time all five members of the Board of Directors were present as well as both respondent and her attorney. Respondent and her attorney were given the opportunity to be heard before a vote on the proposed resolution was taken. Petitioner determined at the Special Meeting by an affirmative vote of at least two thirds of its Board of Directors that respondent has engaged in objectionable conduct, that respondent's tenancy is undesirable and that her proprietary lease should be terminated and her shares sold at auction. A copy of the Board of Directors approved resolutions are attached to the petition as Exhibit "H".

Petitioner subsequently served respondent with a Notice to Terminate on March 22, 2016 in which the effective date of termination of the proprietary lease was July 15, 2016. Thereafter, petitioner inadvertently collected rent/maintenance from respondent for a period of time From July 16, 2016 through September 30, 2016. Petitioner served two more Notices to Terminate, however, similarly inadvertently continued to collect rent/maintenance from respondent after having served said notices. On May 2, 2017 respondent was personally served with a fourth Notice of Termination Notice dated April 27, 2017 which stated that the proprietary lease was being terminated as of May 31, 2017.

The Notice of Termination dated April 27, 2017 notified the respondent that at the March 15, 2016 Special Meeting it was determined that respondent has engaged in objectionable conduct, that respondent's tenancy is undesirable, that her proprietary lease should be terminated and her shares sold at auction. The Notice of Termination further advised that said determination by the Board of Directors was based upon her breach of paragraphs 13 and 18(b) of the Proprietary Lease and paragraph 4, 5 and 25 of the House Rules in that respondent and/or her [*3]guests have made or permitted disturbing and/or unreasonable noises in the building or caused unreasonable interference with the rights, comfort or convenience of other lessees or residents or unreasonably annoyed them. A copy of the Notice of Termination dated April 27, 2017 is attached as Exhibit "L" to the Petition. Respondent failed to vacate the premises.

The respondent has submitted an answer to the holdover petition denying, inter alia, that she engaged in any of the objectionable conduct alleged in the Notices to Cure, Notices of Termination and Petition.

The petitioner now moves for summary judgment contending that it is entitled to a judgment of possession based upon the determination rendered by its Board of Directors at the March 15, 2016 Special Meeting. Specifically, petitioner argues that the business judgment rule applies to the termination of a proprietary lease by a cooperative. Petitioner asserts that it acted within the scope of its authority since it terminated respondent's proprietary lease in accordance with the provision in said proprietary lease that authorized it to do so based upon respondent's objectionable conduct. Petitioner also contends that it followed the procedures contained in the lease and the by-laws when it called a special meeting, notified the requisite board members as well as respondent and set forth the specific resolutions to be determined by the board at said meeting. Petitioner further asserts that its action in adopting the resolutions and deciding to terminate respondent's proprietary lease was in furtherance of its corporate purpose because defendant's conduct was interfering with the property rights of its other shareholders. Lastly, petitioner contends that its determination was made in good faith and in exercise of honest judgment.

In opposition to the motion, respondent has submitted an affidavit in which she summarily states that she has consistently denied the allegations that she committed any actions which would make her a nuisance to other tenants. Respondent further asserts that she has complained about conditions in the subject premises and as a result, the members of the Board of Directors have ganged up on her in an effort make her life miserable and to try to force her to move. Petitioner also contends that she has paid her maintenance for every month that she has resided in the premises. Petitioner has not presented any evidence to substantiate any of her allegations.

The Court of Appeals has determined that in the context of cooperative residential dwellings, the business judgment rule provides that a court should defer to a cooperative board's determination "so long as the board acts for the purposes of the cooperative, within the scope of its authority and in good faith. 40 West 67th Street v Pullman, 100 NY2d 147 (2003); Matter of Levandusky v One Fifth Avenue Apt. Corp., 75 NY2d 530 (1990). In the case at bar, the Court finds that petitioner acted within the scope of its authority, acted in legitimate furtherance of a corporate purpose and in good faith. First, it is clear that petitioner acted within the scope of its authority. Petitioner has provided the Court with the proprietary lease, the by laws, copies of all the Notices to Cure served on respondent, copies of the correspondence regarding the Special Meeting of the Board of Directors and its determination, and copies of the Notices of Termination. Petitioner followed all the procedures contained in the lease and by-laws when acting to terminate respondent's tenancy. Petitioner properly notified all the necessary parties to the meeting, including respondent. Respondent was given an opportunity to obtain counsel and an opportunity to be heard at the meeting prior to the vote. In accordance with the lease [*4]agreement, the cooperative acted on a supermajority vote after properly fashioning the issues and questions to be addressed by resolution. The resolution specified the basis for the board's action and set forth a list of specific findings as to the respondent's specific objectionable behavior.

Second, petitioner has demonstrated that it was furthering its legitimate corporate purpose in maintaining the welfare cooperative as a whole by removing respondent and her objectionable conduct from the cooperative. A review of the Notices to Cure as well as the affidavits of several of the board members present at the special meeting, including Constantin Petropoulos, John English, Frances Villanueva, Rafeal Martinez and Sandro Catalic, support petitioner's assertions that defendant's conduct was interfering with the property rights of petitioner's other shareholders and that the Board's decision was based upon said conduct and its adverse effects on the cooperative as a whole.

Third, petitioner has shown it was acting in good faith when it convened the Special Meeting and approved its resolution terminating respondent's tenancy. Prior to the Special Meeting petitioner was served with several Notices to Cure over a period of years giving her ample opportunity to remedy her objectionable behavior. Moreover, the initial Notice to Terminate served on respondent after the resolution to terminate her tenancy was approved provided respondent with approximately four (4) months notice that her tenancy would expire on July 15, 2016. As such, respondent was provided with ample time to make an orderly transition to another residence. In addition, while respondent has asserted that the Board of Directors have ganged up on her in retaliation for her complaints about certain conditions in the premises, respondent has not shown that the Board of Directors purpose was anything other than furthering the overall welfare of the cooperative or that there was any bad faith, arbitrariness, favoritism, discrimination or malice on petitioner's part when it approved the resolution. As such, the Court finds that petitioner's Board of Directors acted for the purpose of the cooperative as a whole, within the scope of its authority and in good faith and therefore, the Court must defer's to the determination made by petitioner's Board of Directors to terminate respondent's proprietary lease.

With respect to the Petition's Second Cause of Action, petitioner's blanket request for attorneys fees and disbursements in the petition in the amount of $17,580.43 is not supported by any documents or other evidentiary proof to substantiate the amount claimed. A request for legal fees requires presentation of (1) an agreement to pay such fees, tendered by an appropriate affidavit, and (2) an attorney's affirmation detailing the fee arrangement, the legal services provided and the relevant factors bearing upon the claim. Citibank (South Dakota), N.A. v. Macarle, 11 Misc 2d 128A (App. Term 2nd Dept 2006). Here, although the Court is in possession of the proprietary lease agreement with the requisite provision regarding the payment of legal fees, petitioner's counsel failed to provide an affirmation detailing the legal services rendered for the petitioner. Given the considerable amount of legal fees sought by petitioner coupled with the fact that three times petitioner served respondent with a notice to terminate but then inadvertently collected maintenance from respondent, rendering said notices void and thereby incurring additional legal fees through its own error, said affidavit must be carefully considered by the Court before an award of attorney's fees will be granted.

With respect to petitioner's request for use and occupancy for the months that the respondent has held over in the subject premises, petitioner has presented respondent's maintenance ledger for the period from April 18, 2017 to September 1, 2017 which indicates that [*5]respondent has not made a maintenance payment since April 18, 2017 and had an outstanding balance as of September 1, 2017 of $3,521.45. The ledger further indicates that respondent's monthly maintenance payment was $696.29. A copy of the ledger is attached to Petitioner's Reply Affidavit as Exhibit "1". Although respondent has denied that she owes any maintenance arrears to petitioner, respondent failed to provide any documents or other evidentiary proof to dispute the amount owed presented by petitioner.

Based upon the foregoing, petitioner's motion for summary judgment with respect to petitioner's repossession of the subject premises and its claim for maintenance arrears owed by respondent is granted.

Accordingly, judgment of possession in favor of the petitioner. The warrant of eviction to issue forthwith. The warrant of eviction shall be stayed until November 30, 2017 to give the respondent an opportunity to make arrangements for another residence and to vacate the premises. Final judgment for the petitioner in the amount of $4,914.03, the $3,521.45 balance as of September 1, 2017 plus $696.29 for October 2017 and $696.29 for November 2017, which represents use and occupancy through November 30, 2017, to the extent that said use and occupancy has not already been paid.

The Court further directs petitioner to submit an affirmation for attorney's fees with the Court within thirty (30) days of the date of this decision.

This constitutes the Decision and Order of this Court.

The Court considered the following papers on this motion: Notice of Motion dated August 11, 2017, Affidavit in Support by Sandro Catalic, Exhibits A-D,, Affidavit in Support by Frances Villanueva, Affidavit in Support by Constantin Petropoulos, Exhibits 1-2, Affidavit of John English, Affirmation in Support by Lewis Montana, Exhibits A-C, Affidavit of Rafael Martinez, Memorandum of Law; Affidavit in Opposition dated September 7, 2017; Petitioner's Reply Affidavit dated September 13, 2017, Supplemental Memorandum of Law.

Dated: November 16, 2017

Mount Vernon, New York

HON. ADAM SEIDEN

Associate City Judge of Mount Vernon