Stieglitz v 284-285 Cent. Owners Corp.

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Stieglitz v 284-285 Cent. Owners Corp. 2021 NY Slip Op 32684(U) December 2, 2021 Supreme Court, Queens County Docket Number: Index No. 701405/20 Judge: Allan B. Weiss 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. [* 1] INDEX NO. 701405/2020 FILED: QUEENS COUNTY CLERK 12/02/2021 02:51 PM NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 12/02/2021 Short Short Form Form Order Order NEW NEW YORK YORK SUPREME SUPREME COURT COURT - QUEENS QUEENS COUNTY COUNTY Present: HONORABLE ALLAN B. WEISS WEISS Present: HONORABLE ALLAN Justice Justice lAS Part_2 IAS MICHAEL STIEGLITZ, STIEGLITZ, MICHAEL Index No. 701405/20 Index 701405/20 Plaintiff, Plaintiff, Motion Motion Date: 8/11/21 -against-against- Motion Motion Seq. No. 2 284-285 CENTRAL CENTRAL OWNERS OWNERS CORP., CORP., 284-285 AMIANTOS, LLC, aI., AMIANTOS, LLC, et al., Defendants. Defendants. FILED 12/2/2021 COUNTY CLERK QUEENS COUNTY following papers motion by plaintiff plaintiff . The following papers EF numbered numbered_ below below read read on this motion Michael Stieglitz Stieglitz for, inter preliminary injunction injunction directing directing defendant defendant Michael inter alia, a preliminary 284-285 Central Central Owners Owners Corp. to comply comply with of the Remediation Remediation 284-285 with paragraph paragraph 6 of Stipulation and on this cross cross motion defendants for an award award of of Stipulation motion by the defendants attorney's fees attorney's Papers Papers Numbered Numbered Notice of Motion Motion - Affidavits Exhibits .................................... 55-74 55-74 Notice of Affidavits - Exhibits Notice of Cross Cross Motion Exhibits .......................... 76-90 76-90 Motion - Affidavits Affidavits - Exhibits Notice of Answering Affidavits - Exhibits Exhibits ......................................................... . Answering Affidavits Reply Affidavits 92-98; 99-101 Reply Affidavits ................................................................. 92-98; Memoranda of of Law Law ................................................................................. . Memoranda 1 of 7 [* 2] FILED: QUEENS COUNTY CLERK 12/02/2021 02:51 PM NYSCEF DOC. NO. 116 INDEX NO. 701405/2020 RECEIVED NYSCEF: 12/02/2021 Upon the foregoing foregoing papers papers it is ordered ordered that that the motion motion and cross cross motion motion Upon are denied. denied. are Background I. Background January 27, 2020, 2020, plaintiff plaintiff Michael Michael Stieglitz Stieglitz began began this action action On January by the filing of of a summons summons and complaint complaint which asserts causes causes of of action action for which asserts breach of contract, contract, breach breach of of the statutory statutory warranty of habitability, habitability, negligence, negligence, breach of warranty. of injunction relief. Defendant Defendant 284-285 284-285 Central Central O~ners Owners Corp. Corp. ( the and injunction cooperative) is the owner owner and proprietary lessor of of an apartment apartment complex complex cooperative) proprietary lessor located at 284-285 284-285 Central Central Avenue, Avenue, Lawrence, Lawrence, New New York, York, and the complex complex located contains twelve twelve two story story garden-style garden-style apartment apartment buildings having a total total of of contains buildings having approximately seventy seventy two cooperative cooperative apartments. apartments. Plaintiff Plaintiff Michael Michael Stieglitz Stieglitz approximately owns shares shares in the cooperative cooperative and holds executed on or owns holds a proprietary proprietary lease executed about July July 2, 2003 for Apartment Apartment B5 at 284 Central Central A Avenue, Lawrence, New New about venue, Lawrence, York apartment). His second second floor floor apartment, apartment, the home of the plaintiff, York (the apartment). home of plaintiff, his wife, and their their four children, children, has three three bedrooms, bedrooms, a kitchen, kitchen, a dining dining room, room, a living room and two living room and two bathrooms. bathrooms. Allegations of of the Complaint Complaint II. The Allegations alleges the following: following: The plaintiff plaintiff alleges Between 2005 2005 and 2018, 2018, water water c~ming c<?ming from the exterior exterior of of the Between building repeatedly damaged damaged the and ceilings ceilings of of the apartment. The The building repeatedly the walls walls and the apartment. plaintiff complained plaintiff complained to the defendant defendant cooperative, cooperative, the individual individual defendants defendants who serve on on the the Board Board of of Directors, and defendant defendant Alexander Alexander Wolf Directors, and Wolf & who serve Company, Inc. (A (AWC) managing agent agent for the cooperative. cooperative. The defendants defendants WC),, the managing Company, occasionally responded responded to the plaintiffs plaintiff s complaints, complaints, but only to the extent extent of of but only occasionally inspecting the the apartment apartment and and then then scraping scraping and and painting painting over over the the water water damage. damage. inspecting Before 2019 2019 the cooperative cooperative neve~ never attempted attempted to correct correct the defects defects in the roof roof Before of the building building that permitted water water to infiltrate infiltrate the plaintiff s and facade of _that permitted the plaintiffs apartment. apartment. 2 2 of 7 [* 3] FILED: QUEENS COUNTY CLERK 12/02/2021 02:51 PM NYSCEF DOC. NO. 116 INDEX NO. 701405/2020 RECEIVED NYSCEF: 12/02/2021 By 2019 2019 mold mold had had appeared appeared on on the the walls other surfaces surfaces of of the walls and other By ive have the apartment.t. In In May, May, 2019, 2019, the the plaintiff demandedd that that the cooperat cooperative plaintiff demande apartmen response the apartmentt tested tested for for mold mold and and other other hazardou hazardouss substance substances,s, and in response apartmen LLC, cooperative hired an an environm environmental testing company company,, defendan defendantt Amianto Amiantos,s, LLC, ental testing ve hired cooperati ation. Amianto to inspect inspect the the apartmen apartmentt for for mold, mold, lead, lead, and asbestos asbestos contamin contamination. Amiantoss to been detected reported, alia, that high levels levels of of mold mold had been detected in the two that high inter alia, reported, inter ing room children's bedroom bedroomss and and in in the the living/din living/dining room of of the apartmen apartment.t. The children's ental Services cooperative then engaged engaged aa remediation contractor,r, Environm Environmental Services remediation contracto ve then cooperati work at the apartmen remediation work Group (ESG) (ESG) to to submit submit aa proposal proposal for mold remediation apartment.t. for mold Group mold had been him that The cooperati cooperative contacted the plaintiff to inform inform him that mold been the plaintiff ve contacted The 2019. before July detected, and and he directed to vacate the apartmentt on or before July 12, 12,2019. the apartmen to vacate was directed he was detected, 2019 and The plaintiff and his family vacated vacated the apartmen apartmentt on or about about July July 3, 2019 his family plaintiff and The have not lived lived there there since since then. then. have not Unsatisfied with the the ESG ESG proposal, proposal, the plaintiff plaintiff hired hired his own own own own ed with Unsatisfi Boro), to environmental testing company company,, Five Five Boro Boro Mold Mold Specialis Specialist,t, Inc. (Five (Five Boro), ental testing environm 2019 found retest the the entire entire apartmen apartment.t. The The Five Five Boro report dated dated July 17, 17,2019 found high high Boro report retest ion work recommended remediat levels of of mold mold througho throughoutut the the apartmen apartmentt and recommended remediation work levels proposal. The Five more extensive than of the the ESG Five Boro Boro report report also ESG proposal. that of than that more extensive identified large large cracks cracks in in the the exterior exterior fa9ade fayade masonry masonry as the likely likely source source of of the identified logies, Inc. to water problems problems.. The The plaintiff subsequently engaged Microeco Microecologies, ntly engaged plaintiff subseque water perform invasive invasive testing probes throughout apartment,t, and the company company throughout apartmen and probes testing and perform 2019. performed the testing testing on on August 2019 and October October 24, 2019. August 16, 2019 performed the Microbiologies found extensive extensive mold mold infestatio infestationn througho throughoutut the apartmen apartmentt and logies found Microbio plaintiff recommended extensive remediat remediation work. An architect architect hired hired by the plaintiff ion work. nded extensive recomme permitted water building that found defects defects in in the the roof roof and and facade facade of of the building that permitted water found penetration. penetration. ive failed This action action ensued ensued when cooperative failed to do the when the cooperat This remediation work required required by by the experts experts hired hired by the plaintiff. plaintiff. ion work remediat tion Stipulatio ng the Remedia III. The The Plaintiff Plaintiffs s Allegatio Allegations Concerning Remediation Stipulationn ns Concerni III. us delays After the the commenc commencement of this this action, action, continuo continuous delays by the ement of After of 7 s attorney cooperative, and negotiati negotiations, the3 plaintiffs attorney sent sent a final draft draft of of a plaintiff ons, the ve, and cooperati [* 4] FILED: QUEENS COUNTY CLERK 12/02/2021 02:51 PM NYSCEF DOC. NO. 116 INDEX NO. 701405/2020 RECEIVED NYSCEF: 12/02/2021 remediation stipulation stipulation to the attorney attorney for the cooperative. cooperative. The cooperative cooperative remediation executed the remediation remediation stipulation stipulation on October October 29, 29,2020. executed 2020. remediation stipulation stipulation stated stated that that the cooperative cooperative had The remediation obtained a proposal proposal from the Finer Finer Fire Fire Restoration Restoration Corporation Corporation (Finer) (Finer) obtained concerning (1) the disposal disposal of of all non-salvageable non-salvageable personal personal property concerning property in the apartment, (2) the moving, moving, storage, storage, and cleaning cleaning of of all salvageable salvageable personal personal apartment, property located located in the apartment, apartment, (3) the remediation remediation of of the mold mold condition condition property restoration of of the apartment. apartment. The cooperative cooperative agreed agreed to have have such such and (4) the restoration work done by Finer. Finer. work parties stipulated, stipulated, inter alia: (1) As to exterior exterior repairs, repairs, the The parties cooperative had made made repairs repairs to the roof, parapet, parapet, and facade, facade, and the cooperative cooperative warranted warranted that that the exterior exterior work work had been been completed, completed, the apartment apartment cooperative was free of of leaks and water water infiltration, infiltration, and the apartment apartment was now now ready ready for interior mold mold removal removal and restoration. restoration. (2) The plaintiff plaintiff had prepared prepared a list of of interior salvageable personal personal property property which which Finer Finer would would remove remove from the apartment apartment salvageable cleaning and storage storage and a list of of nonsalvageable nonsalvageable personal personal property property which which for cleaning Finer would would dispose dispose of. of. The The cooperative cooperative would would hire hire aa company company to to certify certify that that Finer salvageable personable personable property property had been been restored restored to a safe conditon. conditon. (3) the salvageable cooperative would would perform perform the remediation remediation work work required required by the Finer Finer The cooperative report and other other necessary necessary remediation remediation work. ((4) After Finer Finer had had performed performed the report 4) After remediation work, work, the cooperative cooperative would would engage engage Lawrence Lawrence ENV, ENV, LLC to test test remediation through air monitoring monitoring and material material sampling sampling whether whether the remediation remediation work work had through successful. been successful. The cooperative cooperative breached breached the remediation remediation stipulation. stipulation. For For example: example: cooperative did not provide provide the plaintiff plaintiff with with the required required certification certification (1) The cooperative plaintiff s personal personal property property has been been restored restored to a safe condition. condition. (2) that the plaintiffs cooperative did not provide provide the plaintiff plaintiff with with a clearance clearance test report report that is The cooperative satisfactory to the plaintiff. plaintiff. (3) The cooperative cooperative did not repair repair and restore restore the satisfactory apartment. apartment. plaintiffs attorneys attorneys sent to the cooperative's cooperative's attorneys attorneys a The plaintiffs proposed letter letter agreement agreement dated March March 31, 2021 in which which Stieglitz, Stieglitz, inter inter alia, proposed 44 4 of 7 [* 5] FILED: QUEENS COUNTY CLERK 12/02/2021 02:51 PM NYSCEF DOC. NO. 116 INDEX NO. 701405/2020 RECEIVED NYSCEF: 12/02/2021 agreed to to accept accept the the Lawrence Lawrence ENV ENV report report dated dated March March 17, 2021 concerning concerning agreed the apartment. the post-mold post-mold abatement abatement inspection inspection and testing testing of of the apartment. Steiglitz Steiglitz the presence of alleges: "I "I had had some some reservations reservations about about the continued continued presence of mold mold in the alleges: Apartment. Yet Yet to to avoid avoid delaying delaying any work, I indicated indicated that that I would would agree agree to Apartment. accept the the results results of of the the March March 117, Lawrence ENV ENV Report Report concerning concerning the 7, 2021 Lawrence accept Apartment, provided that Cooperative moved ahead expeditiously expeditiously with with the moved ahead the Cooperative that the Apartment, provided property." Stieglitz restoration work and testing testing of of my personal personal property." Stieglitz further further alleges alleges work and restoration that weeks have gone gone by cooperative. On the response from the cooperative. without any response by without weeks have that other hand, hand, the the cooperative cooperative alleges alleges that that on or about about April April 7, 2021, its attorneys attorneys other proposed letter informed Stieglitz's Stieglitz's attorney attorney of of its rejection of the proposed letter agreement. agreement. rejection of informed Letter The cooperative cooperative alleges: alleges: "Essentially, "Essentially, in the initially initially proposed proposed Letter The Agreement, Stieglitz Stieglitz attempted attempted to redraft redraft the Remediation Remediation Stipulation Stipulation by forcing forcing Agreement, the Co-op Co-op Defendants Defendants to clean and remediate Apartment in perpetuity perpetuity - even even remediate the Apartment to clean the if any any future future leaks leaks and and mold mold growth growth are not due to any fault of of the Co-op Co-op if Defendants. ***Further, * * * Further, the Letter Letter Agreement Agreement sought sought to supplement supplement the Defendants. personal property property certification certification requirements requirements of of the Remediation Remediation Stipulation. Stipulation. * * ** ** personal Stieglitz, without any basis, would not permit Co-op Defendants Defendants to restore restore permit the Co-op basis, would without any Stieglitz, the Letter the Apartment Apartment unless unless the Co-op Defendants Defendants agreed agreed to the terms terms of of the Letter the Co-op the Agreement, thereby thereby causing causing the delays delays he complains complains of." of." Agreement, The plaintiff plaintiff filed filed the instant instant motion motion on April April 23, 2021 and The preliminary injunction submitted it it on on August August 11, 2021. 2021. The motion motion seeks seeks a preliminary injunction submitted remediation compelling the the cooperative cooperative to comply comply with with various various terms terms of of the remediation compelling habitable condition. stipulation such such as as returning apartment to a habitable condition. returning the apartment stipulation Discussion IV. Discussion The plaintiff's plaintiffs motion motion lacks merit. The temporary CPLR 6301, 6301, "Grounds "Grounds for for preliminary preliminary injunction injunction and temporary CPLR preliminary injunction restraining order," order," provides relevant part:" part: " A preliminary injunction may be provides in relevant restraining granted in in any any action action where it appears appears that defendant threatens threatens or is about about that the defendant where it granted to do, do, or or is is doing doing or or procuring or suffering suffering to be done, done, an act in violation violation of of the procuring or to render the plaintiffs rights respecting respecting the subject subject of of the action, action, and tending tending to render plaintiffs rights remediation agreement judgment ineffectual ***."(Emphas * * * ." (Emphasisis added.) added.) The remediation agreement is not judgment ineffectual 5 5 5 of 7 [* 6] FILED: QUEENS COUNTY CLERK 12/02/2021 02:51 PM NYSCEF DOC. NO. 116 INDEX NO. 701405/2020 RECEIVED NYSCEF: 12/02/2021 view contrary view If the contrary plaintiff. If the of action action asserted asserted by the plaintiff. cause of any cause of any subject of the subject of breach of relief for, inter is taken, is seeking inter alia, breach ultimate relief seeking ultimate plaintif f is the plaintiff then the taken, then is will injunction will preliminary injunction tances, a preliminary contract.. "[A extraordinary circumstances, inary circums ]bsent extraord "[A]bsent contract which he relief to which ultimate relief movant the ultimate not issue where do so so would grant the movant would grant to do where to not issue Res LLC v. Res Baisley, LLC or ***." (SHS (SHS Baisley, judgme nt***." final judgment in aa final entitled in be entitled would be she would or she Managers of Board of 2005]; Board Dept 2005]; Land, 18 AD3d [2nd Dept of Managers of 728 [2nd 727, 728 AD3d 727, Inc., 18 Land, Inc., Moreover, 201 0].) Moreover, Dept 2010].) Wharfs ide Condominium AD3d 822 [2nd Dept 73 AD3d Nehrich, 73 v. Nehrich, inium v. de Condom Wharfsi not int, he did not re lie fin althoughh the in his compla complaint, injunctive relief demanded injunctive plaintiff has demanded the plaintiffhas althoug CPLR relief. (See, CPLR show on on this such relief. "entitled" to such be "entitled" would be he would that he motion that this motion show 6301.) 6301.) subject agreement as the subject In remediation agreement the remediation treating the even treating event, even any event, In any successfully make not successfully of aa cause its breach, make the plaintif f did not the plaintiff breach, the for its action for of action cause of of preliminary of a preliminary issuance of required showingg necessary necessary for the issuance prong showin three prong required three burden of on has the burden injunction. injunction of preliminary injuncti for aa preliminary moving for party moving A party injunction. A ultimate of ultimate likelihood of establishing clear and evidencee (1) a likelihood convincing evidenc and convincing by clear establishing by withheld; relief is withheld; provisional relief success on (2) irreparable if the provisional injury if irreparable injury merits; (2) the merits; on the success AD3d mi v. Yeager, 185 AD3d and (3) aa weight of the (Cangemi his favor. (Cange in his equities in the equities weight of and (3) 2019]; Dept 2019]; AD3d 947 [4th Dept 1397 [4th [4th Dept DiMarco, 175 AD3d Mangovskiv. DiMarco, 2020]; Mangovskiv. Dept 2020]; 1397 Realty Corp., Markets Realty Destiny USA Holdings, Global Markets Citigroup Global LLC v Citigroup Holdings, LLC Destiny USA numerous prong, the numerous 69 [4th Dept regard to the first prong, In regard 2009].) In Dept 2009].) 212 [4th AD3d 212 69 AD3d unreasonably in ing who has acted conflicting allegations concerning acted unreasonably parties concern the parties of the ons of conflicting allegati that it court from finding implementing finding that prevent the court agreement prevent remediation agreement the remediation implementing the not plaintif f is not made by the plaintiff is in breach. showingg made breach. The showin is in cooperative is the cooperative likely the is likely permit the court record does not permit clear and convincing. court to the record Moreover, the ing. Moreover, and convinc clear While criteria. While testing criteria. reliable testing most reliable determine party's mold mold expert has the most expert has which party's ne which determi offered to accept the indicatedd in in reply that he offered accept the March March 17, papers that reply papers has indicate plaintif f has the plaintiff nce was 2021 Lawrence ENV Report Report from from the expert, his accepta acceptance cooperative's expert, the cooperative's ce ENV 2021 Lawren record cooperative, and the record made unsatisfactory to the cooperative, are unsatisfactory that are conditions that with conditions made with letter proposed letter rejection of tive' s rejection is not not clear clear and convincing cooperative's of the proposed the coopera that the ing that and convinc is plaintif f did not prong, the plaintiff agreement second prong, to the second regard to In regard unreasonable .... In is unreasonable ent is agreem personal items of regard to items injury in regard show that sustain irrevocable of personal irrevocable injury will sustain he will that he show property. items can can be injury caused caused to them them can be and any injury replaced, and be replaced, Those items property. Those unuseable remedy for unuseable compensated adequatee remedy plaintif f has an adequat The plaintiff money, The by money, sated by compen both reliefis injunctive relief damages, and injunctive personal of monetary is both monetary damages, form of the form in the property in personal property 6 6 of 7 [* 7] INDEX NO. 701405/2020 FILED: QUEENS COUNTY CLERK 12/02/2021 02:51 PM NYSCEF DOC. NO. 116 RECEIVED NYSCEF: 12/02/2021 unnecessary and unwarranted. unwarranted. (See, Mangovski Mangovski v. DiMarco, Moreover, unnecessary DiMarco, supra.) supra.) Moreover, while the plaintiff plaintiff and his family cannot cannot live in the the apartment apartment until while until its restoration, he has found found another another place during the pendency pendency of of this restoration, place to live during action, and he did not show show that that anyone anyone will sustain sustain irreparable irreparable injury injury by living living action, elsewhere. The plaintiff failed to meet meet at least two parts parts of of the tripartite tripartite test, test, and elsewhere. plaintiff failed motion must must be denied. denied. his motion regard to the cross motion motion which which seeks seeks an award award of of attorney's attorney's In regard fees pursuant pursuant to paragraph paragraph 14 of of the remediation remediation stipulation, stipulation, the cooperative's cooperative's application is premature premature since the court court did not determine determine here which which party party is· is application breach of of the agreement. agreement. in breach Dated: DecemberJ. ,' 2021 DecemberJ. ) k l.S.C. '" J.S.C. I. 7 I 7 of 7

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