280-290 Collins Owners Corp. v McCaskill
Annotate this CaseDecided on February 5, 2018
City Court of Mount Vernon, Westchester County
280-290 Collins Owners Corp., Petitioner,
against
Nancy McCaskill, Respondent.
3137-17
Gross & Stabile, LLP
Attorneys for Petitioner
9 West Prospect Avenue, Ste. 406
Mount Vernon, NY 10550
Raneri, Light & O'Dell, PLLC
Attorneys for Respondent
150 Grand Street, Suite 502
White Plains, New York 10601
Adrian N. Armstrong, J.
In this holdover summary proceeding, petitioner, 280-290 Collins Owners Corp., seeks to terminate the tenancy of respondent, Nancy McCaskill, an almost twenty-year shareholder of 280 Collins Avenue, Apt. 1A, Mount Vernon, NY, on the ground that her tenancy was purportedly terminated by timely service of a Notice of Termination.
Respondent now moves for dismissal of the instant action pursuant to CPLR § 3211(a)(7) for failure to state a cause of action. Petitioner opposes the motion and cross-moves for summary judgment, awarding petitioner judgment of possession of the apartment and the issuance of a warrant of eviction. Petitioner also seeks a judgment for reasonable attorney's fees and costs of this proceeding.
Respondent entered into possession of the subject apartment pursuant to a proprietary lease on or about April 27, 1998. At some time during 2014, petitioner's Board of Directors enacted House Rule 21, prohibiting shareholders from keeping and using washing machines in their apartments. However, the Board purportedly allowed shareholders to maintain their washing machines that were installed prior to House Rule 21, including respondent's. Petitioner contends that this courtesy was not intended to allow the shareholders with grandfathered washing machines to replace their currently installed units in perpetuity.
On June 9, 2017 a flood occurred in the respondent's apartment apparently as a result of a failure of her washing machine. Nicholas Goff, the building superintendent, states in his affidavit that the respondent refused him entry on that date, and told him she had the situation under control. While the petitioner claims that the respondent failed to allow access to her apartment on June 9, 2017, respondent maintains that she granted access to the apartment to the superintendent and other employees as required of her pursuant to Paragraph 25 of the lease. On June 20, 2017, the respondent received a letter from petitioner demanding removal of the grandfathered washing machine due to the flood.
Sometime shortly after the flood, respondent replaced the defective washing machine. George Eckstein, President of the Board of Directors, states in his affidavit that the Board did not begin to suspect that respondent had a new washing machine installed until the Managing Agent received a letter from respondent's counsel dated July 19, 2017, explaining that the June 9, 2017 flood had been caused by improper installation of a new washing machine. Mr. Eckstein further states that the Board, in passing House Rule 21, had determined that washing machines placed an excess burden on the plumbing system of the building, and they intended to phase out the existing washing machines over time as they became inoperable.
On August 21, 2017, Angela Salvatore, managing agent for the petitioner inspected respondent's new washing machine and states in her affidavit that it appeared to be functioning properly. However, she states that at no point did she express to respondent that she was or would be allowed to keep the new washing machine, and never represented to respondent that she would be allowed to replace her grandfathered washing machine.
The main issue that this court has to address is whether petitioner's consent allowing respondent to continue to use a washing machine installed prior to enactment of House Rule 21, or "grandfathering" of her old washing machine, created a vested right for respondent to install and use washing machines in the apartment in perpetuity.
The Notice alleges that respondent violated paragraphs 13, 18(c), 24 and 25 of said lease and paragraph 21 of the pertinent house rules on the alleged grounds that she: (a) installed a new washing machine in the apartment in violation of the lease and rules; and (b) refused to allow petitioner's agent into the apartment during an emergency.
It is undisputed from the submissions of the parties that the respondent was permitted by the petitioner, for more than three years, to keep a washing machine despite the enactment of House Rule 21. What is in dispute, is whether the respondent had the right to purchase a new washing machine after the enactment of House Rule 21.
Petitioner does not seek removal of the preexisting washing machine, which had failed, but the new washing machine which respondent apparently installed without petitioner's knowledge or consent, after House Rule 21 was established. Respondent contends that the petitioner waived its right to terminate the respondent's lease due to prior conduct permitting the maintenance and replacement of the washing machine over the years, and the fact that the petitioner orally amended the respondent's lease to permit the use of the washing machine in respondent's apartment. Respondent also [*2]maintains that contrary to the petitioner's contention that she did not grant access to the petitioner's superintendent on June 9, 2017, the date of flooding in the subject apartment, she has always been compliant with the lease in allowing all required personnel access to the apartment on each and every instance that access was required.
On a motion to dismiss [a] complaint pursuant to CPLR § 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [AD2d 2008]). Where a defendant has submitted evidentiary material in support of a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion has not been converted to one for summary judgment, 'the criterion is whether the [plainitff] has a cause of action, not whether he [or she] has stated one, and, unless it has been shown that a material fact as claimed by the [plaintiff] to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it ... dismissal should not eventuate' " (Rosin v Weinberg, 107 AD3d 682 [AD2d 2013], quoting Guggenheimer v Ginzburg, 43 NY2d 268 [1977]). Affidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211(a)(7) unless they "establish conclusively that plaintiff has no cause of action" (Rovello v Orofino Realty Co., 40 NY2d 633, 636 [1976]).
Here, contrary to respondent's contentions, accepting the facts alleged in the petition, it sufficiently alleges a violation of the subject lease, namely that the respondent installed a new washing machine in the apartment in violation of the House Rules, and furthermore it alleges that the respondent refused to allow an agent of the petitioner into the apartment during an emergency in violation of the lease. Additionally, there is no documentary evidence that the petitioner waived its right to bring this proceeding. A waiver is the voluntary abandonment or relinquishment of a known right (Jefpaul Garage Corp. v Presbyterian Hospital, 61 NY2d 442, 446 [1984]). The record indicates that petitioner sought to enforce House Rule 21 when they were made aware that respondent purchased a new washing machine for her apartment. As such, respondent's motion to dismiss the petition for failure to state a cause of action is denied.
CPLR § 3212(b) requires that for a court to grant summary judgment, the court must determine if the movant's papers justify holding, as a matter of law, "that the cause of action or defense has no merit." It is well settled that the remedy of summary judgment, although a drastic one, is appropriate where a thorough examination of the merits clearly demonstrates the absence of any triable issues of fact (Vamattam v Thomas, 205 AD2d 615 [2nd Dept 1994]). It is incumbent upon the moving party to make a prima facie showing based on sufficient evidence to warrant the court to find movant's entitlement to judgment as a matter of law (CPLR § 3212 [b]). Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action [*3](Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Summary judgment should be denied when, based upon the evidence presented, there is any significant doubt as to the existence of a triable issue of fact (Rotuba Extruders v Ceppos, 46 NY2d 223 [1978]). When there is no genuine issue to be resolved at trial, the case should be summarily decided (Andre v Pomeroy, 35 NY2d 361, 364 [1974]).
In support of its motion for summary judgment, petitioner argues that the grandfathering of respondent's old washing machine did not create a vested right for respondent to use washing machines in perpetuity. In addition, petitioner maintains that any waiver of House Rule 21 was limited to the preexisting or grandfathered washing machine.
In this case, it is undisputed that in 2014, the respondent was informed by the Board, that despite the enactment of House Rule 21, she was allowed to possess a washing machine in her apartment, as her possession of a washing machine therein predated the enactment of the subject Rule. Both parties however failed to present evidence or establish what the agreement was, if any, between the parties pertaining to the respondent's right to purchase a new washing machine in the event of the disrepair of the grandfathered machine.
This Court therefore denies petitioner's motion for summary judgment, as there are questions of fact as to what House Rule 21 actually states, since no party attached a copy of the current House Rules. Moreover, no board minutes are attached either as to what rule exemptions were contemplated when the subject rule passed, if any. Lastly, questions of fact exists as to what was conveyed, if anything, either orally or in writing to the respondent regarding her continued use of the washer. These questions relate to whether House Rule 21 was waived with respect to the respondent's right to purchase a new washer.
Accordingly, respondent's motion to dismiss is denied, and the respondent is directed to submit an Answer by and appear on February 20, 2018 at 9:30 AM. Petitioner's cross-motion for summary judgment and attorney's fees, is similarly denied.This constitutes the Decision and Order of this Court.
The court considered the following papers in this matter: Motion to Dismiss, dated January 12, 2018, Exh. A-F; Affirmation in Opposition to Dismiss and Cross-Motion, dated January 22, 2018, Exh. A-D; and Affirmation in Opposition and Reply, dated January 27, 2018.
Dated: February 5, 2018
Mount Vernon, New York
__________________________
HON. Adrian N. Armstrong
City Judge of Mount Vernon
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