72 Poplar Townhouse LLC v Board of Mgrs. of the 72 Poplar St. Condominium

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72 Poplar Townhouse LLC v Board of Mgrs. of the 72 Poplar St. Condominium 2021 NY Slip Op 32442(U) November 17, 2021 Supreme Court, Kings County Docket Number: Index No. 501530/20 Judge: Leon Ruchelsman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] KINGS COUNTY CLERK 11/24/2021 04:19 PM INDEX NO. 501530/2020 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 11/24/2021 SUPREME COURT OF THE: STATE OF NEW YORK COUJ\ITY OF KINGS : CIVIL TERM:· COMMERCIAL PART 8 ---· --. -·- .-- · - - - - ·. - - · - - - - - - - · - - - . - -- ·---.-- .X 72 POPLAR TOWNHOUSE LLC, Decision and order Plaintiffs, Index No. 501530/20 - against BOARD OF MANAGERS OF THE 72 POPLAR STREET CONDOMINIUM, RON SION, AMY LEE, MICHAEL ROSNER, RAKESH MANGAT AND TORA FISHER BUCKWORTH, November 17, 2021 De f.endants., ----· -------- ·-.--. -·--·-- ··-·---- ·----·-- ·----. -x PRESENT: HON. LtON RUCHELSMAN The plaintiff has moved pursuant to CPL'R §3124 compelling discovery and pursuant to CPLR §3126 seeking to strike the defendant Board of Manager's answer for their contumacious conduct. The defendants oppose the motion. Papers were submitted by the parties and after reviewing all the arguments this court now makes the following deter:tni:hation, As recorded in a prior order, property' located at 72 Poplar Street in Kings County is a cooperative that consists: of thirteen residential units and a separate townhouse, Two sets of by-laws were adopted which materially differed in the way common charges were assessed against the unit owners. The by-laws presiented by the offering plan stated that coinrnon expertse.s would oe assessed. based upci.n the perC:e~tage of ownership of the common interest. Howeve.1:, the by-laws that wete recorded changed the percentage owed by t.he owner of th.e townhouse. 1 of 4 To resolve the [*FILED: 2] KINGS COUNTY CLERK 11/24/2021 04:19 PM NYSCEF DOC. NO. 79 INDEX NO. 501530/2020 RECEIVED NYSCEF: 11/24/2021 d_iscrepancy :between the. two y~.:csions of the by.-laws ·the board called a special meeti~g to .resolv~_the discrepancy. All of the unit owners participated and a vote to reconcile thE:!discrepan cy was approved· by 8".2-.% of the unit own·e-rs _. The ·plainti.f f was unhappy with: the vote ahd instituted th.e wi thi.n law_sui t. 'I'h$ complaint ass·erts causes of .action for a declaratory j udg\9!ment the vote and .subse"!'quent amendment is void, breach o.f -contr·act, breach of fi<;:iuciary duty.:, fraud and estoppel. Th.e issue presented in this motion is whether the def endaht' s .reliance- 1-1;pon th.e- advice of -couns.e·l as presented i.n their affiri;natiye defe.n~es se.:i:;:ved a_s a waiver of the attorney client privilege and tha"t consequently the defendant must furnish ·qocuments th.ey now claim are ·privi.le·ged_. The tb,ird and fifth affir;mative dE:::Eenses: asserted by the defendants state that "plaintiff's 9ornplaint must be dismissect·as ·defendants' action-s are, prot.e_.c:te-d. as. def·endant.s- relied on. the a,dvice of counsel" (An~_wer, :1 31) and "p [laintiff' s complaint must be. dismissed as defendants followed .advice of co"unsel ih ''taking the necesscrry st;eps t.9. lawfu.lly amend the declarati·on" (Answer, ~ 33) • In Paramount Communicatio ns Inc .• v. Donaghy, 858 F.Supp 391 [S .--D .N. Y. 1994] t,he court ·expiained there a-re ce.rtairi factors that must be examinecl to determine wl)ether a party implicitly 2 2 of 4 [*FILED: 3] KINGS COUNTY CLERK 11/24/2021 04:19 PM NYSCEF DOC. NO. 79 INDEX NO. 501530/2020 RECEIVED NYSCEF: 11/24/2021 waived the attorney client privilege. Thus, the court must answer whether "the assertion -Of the privilege was a result of some affirmative act by the asserting party; whether through this aff;Lrmative act the asserting party put the protected information at issuE:! by making it relevant to the case; and whether application of the privilege would have denied the opposing party access to information vital to its defense" {id). The reason for this rule was explained in Windsor Securities LLC v. Arent Fox LLP, 273 F.Supp3d 512 [S.O.N.Y. 2017]) where the court: noted ''it would be urifair for a party who has asserted facts that place privileged communicatiorts at issue to deprive the opposing party of thefoeans to test those factual assertions through discovery of those communications" (id), Thus, in Village Board o:E Village of Pleasantville v. Rattner, 130 AD2d 654, 515 NYS2d 585 [2d Dept., 1987] the court held that "where a party asserts as an affirmative defense the reliance upon the advice Of counsel, the party wi3:i ves the_ attorney-client privilege with respect to all communications to or from counsel concerning the transactions for which counsel's advice was sought" (id); The defendants do not really raise any argument why the above rules should not apply and rather argue generally abcnit the itnpdrtance and primacy of the attorney client privilege. course, neither the plaintiff nor the court disputes the 3 3 of 4 O:f [*FILED: 4] KINGS COUNTY CLERK 11/24/2021 04:19 PM INDEX NO. 501530/2020 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 11/24/2021 importance of the attorney client privilege, rather, considering the facts of this case such privilege has been waived ( ~ , Scott v. Chipotle Mexican Grill Inc., 67 F.Supp3d 607 [S.D.N.Y. 2014]). Therefore, the defendants must comply with the discovery that is being sought to which the defendants have asserted a privilege. Such unredacted documents must be furnished to the plaintiff within thirty days of this order. All motions seeking sancti,ons of the dismissal of any pleadings are denied at this time. So ordered. ENTER: DATED: November 17, 2021 Brooklyn N.Y. Hon~ Leon Ruchelsman JSC 4 4 of 4

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