Eshaghpour v Promenade Condominium

[*1] Eshaghpour v Promenade Condominium 2023 NY Slip Op 50626(U) Decided on June 27, 2023 Supreme Court, New York County Lebovits, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 27, 2023
Supreme Court, New York County

Robin Eshaghpour, Elena Eshaghpour, and East River Condo LLC, Plaintiffs,

against

The Promenade Condominium and The Board of Managers of the Promenade Condominium, Defendants.



Index No. 650320/2022


Schwartz Sladkus Reich Greenberg Atlas LLP, New York, NY (Andrea J. Caruso and Pamela Parker Procida of counsel), for plaintiffs.

Meister Seelig & Fein LLC, New York, NY (Stephen B. Meister, Justin R. Bonanno, and Samantha L. Frenchman of counsel), and Abrams Garfinkel Margolis Bergson, LLP, New York, NY (Barry G. Margolis of counsel), for defendants. Gerald Lebovits, J.

Plaintiffs Robin Eshaghpour, Elena Eshaghpour, and East River Condo LLC, own five units in a luxury condominium building in Manhattan that is owned and managed by defendants. For years, plaintiffs had been trying to combine the units to build a duplex. That effort has resulted in a legal dispute in which defendants claim that plaintiffs owe money damages for violating the Condominium's bylaws and that plaintiffs harassed defendants' managing agent, Alexis Kaminoff-Fritz.

In October 2014, plaintiffs sued defendants, seeking a declaratory judgment and [*2]accompanying injunctive relief enabling plaintiffs to perform construction work on their units, without interference from defendants, under an existing alteration agreement between the parties. They also claimed that the Board of Managers breached their fiduciary duties. The parties then entered a settlement agreement that delineated the scope of permitted work, timing for completion, arrears, and fines.

On January 20, 2022, as plaintiffs and defendants were embroiled in the dispute over hallway work, Mr. Eshaghpour allegedly became angry and threatened defendants' managing agent, Kaminoff-Fritz, with words and actions. (NYSCEF No. 39 at ¶¶ 15-16.) Kaminoff-Fritz's daughter was present at the scene. To protect their employee's safety, defendants hired security to shadow Kaminoff-Fritz when she was working at the building. (NYSCEF No. 36 at ¶ 27.)

In 2022, the Promenade Condominium sued Mr. Eshaghpour for injunctive relief following Mr. Eshaghpour's alleged harassment of Kaminoff-Fritz. (Board of Mgrs. of the Promenade Condominium v Eshaghpour, Index No. 151028/2022 [Sup Ct, NY County] [Eric Schumacher, J.].) In another action in the same year, defendants brought a lien-foreclosure action for $174,000 in common charges and fines, claiming that plaintiffs violated the alteration agreement. (Board of Mgrs. of the Promenade Condominium v Eshaghpour, Index No. 151598/2022 [Sup Ct, NY County] [Paul Goetz, J.].)

In November 2022, the Promenade Condominium adopted a bylaw amendment to Article VII, Section 10, giving the defendant the right to restrict a unit owner's use of the building's amenities and non-essential services if the unit owner is in arrears for more than 60 days in the payment of "Common charges, a Special Assessment or any other monies due and owing." (NYSCEF No. 16 at ¶ 42.) The Board then informed plaintiffs that their units owed $711,049.57, including $174,000 for alleged breaches and approximately $110,000 in costs of hiring security for Kaminoff-Fritz. They also sued for legal fees, late fees, and other miscellaneous charges. (NYSCEF No. 42 at 4.)

In response, plaintiffs moved by order to show cause for preliminary injunctive relief and temporary restraining order (TRO). The TRO sought an order to direct defendants to stay from enforcing the amended bylaw and to enjoin defendants from restricting plaintiffs and plaintiffs' children from using the building's amenities by other means. (NYSCEF No. 42 at 2.) On March 24, 2023, this court denied plaintiffs' request for that TRO, holding that plaintiffs had not sufficiently shown a likelihood of success on the merits. (Id.)

DISCUSSION

A court should grant preliminary injunctive relief only if the claim is likely to succeed on the merits, if there will be irreparable harm absent the injunction, and if the balance of the equities favors the movant's cause. (See CPLR 6301; see also Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 NY3d 839, 840 [2005].) Plaintiffs did not adequately demonstrate a likelihood of success or irreparable harm.[FN1] Their request for a preliminary injunction is denied.

1. Whether plaintiffs are likely to succeed on the merits

To establish a likelihood of success on the merits, a prima facie showing of a right to relief suffices; actual proof or conclusive evidence is not necessary. (See Barbes Rest., Inc. v ASRR Suzer 218, LLC, 140 AD3d 430, 431 [1st Dept 2016].) That said, conclusory statements are not adequate. (See e.g. U.S. Re Companies, Inc. v Scheerer, 41 AD3d 152, 154-156 [1st Dept 2007] [vacating injunction enjoining defendant from using plaintiff's information to solicit plaintiff's clients, because plaintiff had not demonstrated the probability that defendant would do so and because defendant was not contractually barred from doing so].)

Defendants have the contractual right to "seek damages from the Unit Owners of the property for violations of the house rules." (NYSCEF No. 22 at 5 [By-Laws of the Promenade, Article III § 5.7].) It is undisputed that if the court finds that plaintiffs owe defendants penalties for unauthorized constructions or renovations, plaintiffs would owe defendants "any other monies due and owing [to defendants]" under the bylaw amendment. (NYSCEF No. 20 at Article VII § 10.) Defendants' rights to cut plaintiffs' access to amenities and nonessential services if plaintiffs fail to pay within 60 days are not conclusory but legitimized by the bylaws. (Id.)

In this case, defendants allege that plaintiffs violated the bylaws by installing windows and removing railings without defendants' permission, assertedly contravening article VII § 7 of the bylaws. Given this allegation, defendants claim that plaintiffs owe fines, which go under the catch-all category of "any other monies" in the bylaw amendment. If this court sides with defendants, defendants will have the legal right to withhold access to the building's nonessential amenities from plaintiffs. (NYSCEF No. 20 at Article VII § 10.)

Although Mr. Eshaghpour expresses skepticism that the amendment was properly passed, neither he nor the other plaintiffs dispute its validity. (NYSCEF No. 16 at ¶ 43 [claiming that "historically it has been impossible to get the required votes for bylaw amendment"].) Plaintiffs also do not raise a definitional challenge to "amenities" and "nonessential services."

On reply, plaintiffs argue that the size of the fine claimed by defendants is unfairly large and that defendants do not have the authority to impose arbitrary fines and late fees. (NYSCEF No. 48 at 5-6.) Specifically, plaintiffs contest that defendants' annual interest rate of 12% is excessive. (Id. at 6.) This court agrees that the building's bylaws must be consistent with the law, which means that imposition of money damages must be reasonable, fair, and legal. (See Vernon Manor Co-op, Apts., Section 1, Inc. v Salatino, 15 Misc 2d 491, 494 [County Ct, Westchester County 1958].) Two precedents plaintiffs use as authority rely on the Penal Law § 190.40 to decide that "an interest charge of more than 25% per annum [is] a criminal offense."[FN2] (Board of Mgrs. of Park Ave. Ct. Condominium v Sandler, 2015 NY Slip Op 51316[U], at *3 [Sup Ct, NY County 2015]; accord Board of Mgrs. of Westbury Terrace Condominium v Roberts, 2013 WL 4717929, at *3 [Sup Ct, Nassau County 2013].) Therefore, the 12% per annum rate by which defendants calculate interest on outstanding charges (also known as late fees) (NYSCEF No. 36 [*3]at 9) is reasonable and enforceable under this standard.

Common law also holds that a court should deny a preliminary injunction unless the movant's right to one is necessary and justified from the undisputed facts. (See e.g. O'Hara v Corp. Audit Co., 161 AD2d 309, 310 [1st Dept 1990].) Whereas Mr. Eshaghpour is adamant that the President of the Board had green-lighted plaintiffs' plans to alter the appearance of their units' windows, door surround, and mechanical room door (NYSCEF No. 43 at ¶ 11), Kaminoff-Fritz avers that the Board never approved those alterations (NYSCEF No. 36 at ¶ 8). The parties disagree over an issue fundamental to the underlying suit. The undisputed facts favor neither side. This court is unable to conclude that plaintiffs are more likely than defendants to succeed on the merits.

2. Whether plaintiffs suffer irreparable harm absent injunctive relief

A preliminary injunction maintains the status quo pending a hearing and prevent the judgment from being ineffectual. (See Barbes Rest., 140 AD3d at 432.) The court should deny an injunction if an "adequate remedy at law" or an "availability of self-help" exists. (Lesron Jr., Inc. v Feinberg, 13 AD2d 90, 93-94 [1st Dept 1961].)

Plaintiffs claim that halted access to the building's gym will result in irreparable harm to plaintiffs' disabled son (who is diagnosed with autism, Attention Deficit Disorder, spinal asymmetry, and thoracolumbar kyphosis). (NYSCEF No. 23 at 7.) They also argue that not only will the lack of exercise with his therapist in the gym negatively impact his physical health, but also that the change in schedule and routine can disturb his mental well-being. (Id. at 8.) Moreover, plaintiffs also mention Mr. Eshaghpour's injured wrist and shoulder; plaintiffs posit that should defendants instruct the doorman not to open the heavy front doors for plaintiffs and family members, Mr. Eshaghpour will have to over-exert himself and exacerbate his injuries. (Id.)

In response, defendants make clear that plaintiffs' son may have access to the aerobics room. (NYSCEF No. 41 at 16.) In correspondence dated March 15, 2023, defendants' counsel informed plaintiffs' counsel that plaintiffs are invited to schedule the aerobic room for their sons' physical therapy purposes with the building's staff. (NYSCEF No. 26.) In addition, defendants also clarify that the rule does not allow for children under 16 to use the fitness room. (Id.) As for Mr. Eshaghpour's injuries, the Condominium has "not threatened to instruct its doormen not to open doors to the building for Mr. Eshaghpour or his family members if they need assistance doing so." (Id.)

In their reply dated April 28, 2023, plaintiffs reiterate that "any change in [their] son's schedule will cause him harm." (NYSCEF No. 48 at 7.) Plaintiffs do not provide further explanation as to how the change in schedule will harm their son, or whether plaintiffs have attempted to coordinate a schedule with the building's staff that is favorable to their son's mental stability.

Because plaintiffs can still negotiate a timetable that will eliminate or minimize the alleged harm to their son, the court cannot confidently conclude that there will be irreparable injury absent a preliminary injunction. (See City of NY v Giuliani, 248 AD2d 1, 17 [1st Dept 1998] [reversing a grant of a preliminary injunction enjoining the Mayor from placing a referendum on the voter's ballot that would undermine the plaintiffs' initiative to halt the Yankee stadium's relocation, as without the injunction, the Mayor still would not be able to spend public [*4]funds on a new stadium without City Council's permission, such that the alleged irreparable harm is not certain]; Chiagkhouris v 201 W. 16 Owners Corp., 150 AD3d 442, 442 [1st Dept 2017] [reversing a grant of a preliminary injunction enjoining defendants from terminating plaintiff's lease of apartment because it was not entirely clear that plaintiff would be facing mortgage default without injunctive relief].)

Plaintiffs do not dispute the effectiveness of defendants' solution to Mr. Eshaghpour's wrist and shoulder injury, compelling the court to conclude that plaintiffs will likewise not suffer irreparable harm without a preliminary injunction.

Accordingly, it is

ORDERED that plaintiff's motion for a preliminary injunction is denied.

DATE 6/27/2023 Footnotes

Footnote 1:Given the court's conclusion on these points, the court does not reach the question of the balance of equities.

Footnote 2:Plaintiffs also rely on another precedent as authority, Gabriel v Bd. of Mgrs. of Gallery House Condominium (130 AD3d 482 [1st Dept 2015]). Gabriel does not explicitly mention Penal Law § 190.4. It does, however, cite Sandra's Jewel Box Inc. v 401 Hotel, L.P. (273 AD2d 1 [1st Dept 2000]). Sandra's Jewel Box took the 25% rate ceiling in Penal Law § 190.40 into account in holding that late charges accruing at an annual rate of 365%, although not technically interest, were improperly confiscatory in nature. (Id. at 3.)