Preview
FILED: NEW YORK COUNTY CLERK 02/13/2014 INDEX NO. 151313/2014
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/13/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
----------------------------------------------------------x
HELEN SILLER, :
:
Plaintiff, :
:
-against- : Index No.
:
THE THIRD BREVOORT :
CORPORATION, : VERIFIED COMPLAINT
:
Defendant. :
----------------------------------------------------------x
Plaintiff, by her attorney, Stephen I. Siller, for her Verified Complaint alleges as follows:
PRELIMINARY STATEMENT OF THE CASE
1. Plaintiff regrets her need to seek judicial intervention over the matter of whether
plaintiff is entitled to replace with the same or substantially the same machines, both a clothes
washer and clothes dryer that were part of extensive alterations approved on June 25, 1990 by
defendant, a cooperative housing corporation, when plaintiff and her husband purchased and
obtained defendant’s written approval to combine their first apartment with their second, then-
contracted for second and adjoining apartment.
2. The legal issue here is whether defendant can by its board of directors adopt new
House Rules in 2012 that specify three specific brands of appliances, as opposed to simply
requiring that appliances be Energy Star rated1 and thereby unilaterally abrogate or change the
terms of executed contracts that are extant and binding on both defendant and plaintiff. Plaintiff
says defendant cannot do that. Defendant says it can. Plaintiff also says that if the defendant’s
2012 House Rules are inconsistent with the executed contracts, or there is any ambiguity
between them, the executed contracts must prevail. Otherwise, those contracts would have no
1
Defendant existed as a cooperative corporation for about 43 years without any brands of appliances having ever
been specified in any House Rules.
1
meaning if defendant can abrogate them merely by defendant’s board of directors changing the
House Rules.
3. Plaintiff’s non-legal summary of this case is: When I purchased apartment 12R in
1990 to combine it with apartment 12T at 11 Fifth Avenue (the “Brevoort”), it was with the view
that I wanted to live out my life (if possible) in this space. With that in mind, I installed a single
unit combination washer/dryer so that it would not be difficult to do laundry because I have a
long history of back problems, as does my husband. Carrying laundry up and down to the
Brevoort’s basement laundry room is a hardship for both of us. We obtained all the Landmark
and defendant’s board approvals, and much expense, time and hard work were involved to
combine our two apartments and do the renovations the defendant approved. Defendant’s
current board of directors has stated that these approvals are not valid because they have
“changed the rules.” Despite the fact that my approved clothes washer and gas clothes dryer
with an approved vent to my terrace have been in place for twenty-three (23) years without
incident, I am now told that I cannot replace my washer and vented gas dryer with like machines
hooked up to the exact same connections, with absolutely no alterations being done to anything,
because they would not be “approved” brands and do not self-vent under the defendant’s 2012
House Rules. Not only would this involve closing up the hole in the bricks, which common
sense dictates should not be done, but the electrical requirements of the “approved brands”
would entail unnecessary expensive and extensive electrical work. Had I known that this would
occur after all the work, effort and expense to obtain the requisite approvals in 1990, and to do
the alterations in 1990-1991, I would never have undertaken this project. Defendant’s behavior
is unfair and capricious and to me seems like it is intended to exact pain from someone who has
always “played by the rules.”
2
4. The alteration agreement between plaintiff and defendant (Exhibit 1) (“Alteration
Agreement”) was executed by both parties prior to plaintiff purchasing the second apartment,
Apartment 12R. Section 8 of the Alteration Agreement provides that plaintiff’s contractor must
certify in its agreement with the plaintiff “that the alterations are for the sole use and benefit of
the Cooperator [plaintiff here]. The Cooperator agrees to assume all responsibility for the
weather-tightness of any installation affecting exterior walls . . . and the waterproofing of any
portion of the Building structure directly or indirectly affected by the Alterations and for the
maintenance and performance of all heating, plumbing, air conditioning and other equipment
installed, or altered, by the Cooperator, during the balance of their lease term.” (Emphasis
added)
5. In 1990-91, plaintiff purchased and installed a then-new clothes washer and gas
clothes dryer that ducts out through a vent onto plaintiff’s terrace. That duct and vent were part
of plaintiff’s alterations and approved by defendant as is clear in the January 1992 letter
defendant’s then superintendent sent to the plaintiff and defendant: “Re: Gas Dryer, Apt. 12R
Laundry Room – I inspected the Vent connections in the Laundry Room of Apt. 12R. Also the
connection of the Exhaust End located through the brick wall on their terrace area -- I found all
the connections properly installed and free of leakage from water, or lint – Mel Cohen” (Exhibit
2) (“Dryer Vent Inspection Letter”).
6. Paragraph Twentieth of the Lease provides: “The Lessee [plaintiff] shall not,
without first obtaining the written consent of the Lessor [defendant], make in the apartment, or
on any roof, terrace or balcony appurtenant thereto, any structural alteration or any alteration of
the water, gas or steam pipes, electrical conduits or plumbing or, except as hereinafter
authorized, remove any additions, improvements or fixtures from the apartment. If the Lessee . .
. shall hereafter place in the apartment any special additions, improvements or fixtures, such as . .
3
. airconditioning equipment . . . then the Lessee shall have the right, prior to termination of this
lease, to remove the same at Lessee’s own expense.” (Emphasis added) This right to remove
any such alterations resides solely with the Lessee, plaintiff here, and not with the Lessor-
defendant. In reliance on that, plaintiff obtained defendant’s written consent and made the
alterations including the vent through the bricks for the gas dryer to exhaust out to the terrace.
7. Paragraph Nineteenth of the Lease provides: “The Lessee . . . shall be solely
responsible for the maintenance, repair and replacement of electrical, lighting, plumbing, gas and
heating fixtures and equipment, and such . . . air conditioning units, washing machines, flues and
ranges as may be in the apartment. Plumbing, gas and heating fixtures as used herein shall
include gas, steam and water pipes and the equipment and fixtures to which they are attached
from the point where such pipes, equipment or fixtures extend into the interior of the rooms in
the apartment from the surface of the wall, floor or ceiling of the said rooms, and any special
pipes or equipment which the Lessee may, with the consent of the Lessor, install within the wall
or ceiling, or under the floor.” (Emphasis added) Accordingly, defendant cannot prevent
plaintiff from replacing the washer and dryer which is connected to an existing vent or “flue.”
8. Paragraph Eighth of the Lease provides: “A lessee of an apartment having direct
access to a terrace or balcony shall have and enjoy the exclusive use of a portion of such terrace
or balcony which immediately adjoins the apartment, subject to the use of such terrace or
balcony by the Lessor to enable it to fulfill its obligations hereunder.” (Emphasis added)
Plaintiff has such direct access and the exhaust duct from the gas dryer, as approved by
defendant, vents out onto plaintiff’s terrace over which plaintiff has the “exclusive use.”
9. Paragraph Sixteenth of the Lease provides: “The Lessor may from time to time
establish such reasonable house rules as its board of directors may deem necessary for the
management and control of the building, and may also from time to time alter, amend and repeal
4
such rules.” (Emphasis added) The part of the 2012 House Rules specifying three brands of
appliances or prohibiting a vent or flue that defendant is asserting apply to replacement of
plaintiff’s washer/dryer are neither reasonable nor in any way “necessary for the management
and control of the building,” especially considering that plaintiff’s use of her terrace is exclusive
as to her under Paragraph Eighth of the Lease quoted in Paragraph 8 above.
10. The 2012 House Rules, which were effective April 1, 2012, that are relevant to
plaintiff’s washer-dryer are:
10.1. Section 4: “[W]ashing machines, clothes dryers, and all other such devices
require Lessor’s prior written approval, whether Lessee is installing new devices or replacing old
devices and must have Energy Star Ratings. Except as otherwise permitted in the Alterations
Agreement, a Lessee seeking approval to install a washing machine and/or clothes dryer is
limited to three brands: Miele, Bosch, and Asko. All clothes dryers shall be self-venting. Lessee
shall have an affirmative obligation to determine from Lessor’s managing Agent whether an
Alterations Agreement is necessary for the installation of any device or machine covered by this
paragraph.”
10.2. Section 77: “No . . . ventilators, air conditioners . . . or objects that
protrude or project from the building shall be used or installed unless expressly approved in
writing by the Lessor.”
10.3. Section 78: “No window air conditioner may be installed OR [sic]
replaced in any apartment without the express prior written consent of the Lessor.
10.4. Section 79: “No through-the-wall air conditioner may be replaced or
installed without the express prior written consent of the Lessor. Through-the-wall air
conditioners must comply with all terms and conditions specified in the most current Alterations
Agreement and all attached Exhibits, which documents are incorporated herein by reference.”
5
10.5. Section 100: “No determination, decision, consent, permission or approval
by Lessor (collectively “Decisions”) given by Lessor under these House Rules shall create any
legal rights in the Lessee or any third party and such Decisions shall be revocable by the Lessor
at any time. . . . Such Decisions are made by the Board of Directors in the exercise of its sole and
absolute discretion in accordance with the Corporation’s By-Laws, the Lease, and the House
Rules, as they may be amended from time to time.” (Emphasis added)
11. Sections 4, 77, 78, 79 and 100 seem to be the only provision in the 2012 House
Rules that defendant is applying to plaintiff’s washer/dryer and will likely apply to replacement
of appliances and devices installed as part of plaintiff’s renovations that defendant expressly
approved in writing in 1990 and which are covered by the Alteration Agreement and the Dryer
Vent Inspection Letter. All of the brands identified in the 2012 House Rules require 230 volts
electricity and thus upgrades to the electrical service to 12R and larger amperage breakers than
currently exist, and all are self-venting dryers. The 2012 House Rules do not address existing
washers, dryers, vents or flues that are already the subject of the existing Alteration Agreement.
Plaintiff’s washer and dryer and existing electric service are 115 volts electricity, 15 or 20
amperage breakers, and the dryer is a gas dryer that vents to the exterior as it has done for 23
years as approved by the defendant’s board, the Alteration Agreement, and the Dryer Vent
Inspection Letter, all as contemplated in Paragraphs Nineteenth and Twentieth of the Lease.
12. Section 100 of the 2012 House Rules, which gives defendant’s board of directors
the right to exercise “its sole and absolute discretion in accordance with . . . the Lease,” is in
direct conflict with and violates the Lease which in Paragraph Sixteenth, as quoted in Paragraph
10 above, circumscribe\s board action in two ways: (1) The House Rules adopted by the board
must be “reasonable” and (2) The House Rules must be deemed by defendant’s board of
directors to be “necessary for the management and control of the building.” Sections 4, 77, 78,
6
79 and 100 of the House Rules are neither “reasonable” nor upon information and belief have
they been deemed by defendant’s board of directors as “necessary for the management and
control of the building.” Moreover, defendant’s architect reviewed plaintiff’s alteration plans
and in a July 12, 1990 letter to defendant’s managing agent referred to plaintiff installing a
washer and dryer and said: “The proposed alteration appears to be moderate in scope and I
believe will have no adverse impact on the building other than that typically created by interior
alterations.”
13. Plaintiff’s use of her terrace is exclusive to her. Plaintiff’s washer, dryer, vent,
and hole in the bricks have existed with defendant’s written approval since 1990-1991. The
2012 House Rules that regulate the brands of washers/dryers have no reasonable relationship to
anything other than perhaps that they need to be Energy Star rated which the units proposed to be
installed by plaintiff are. No new alteration agreement is needed since nothing is being altered.
Defendant is deeming a mere replacement of appliances without any change in the lessee,
electricity, drain, venting or dimensions of the appliances to be an “alteration.” Nothing about
that is either “reasonable” or implicated in the “management and control of the building.”
14. Section 10 of the Alteration Agreement provides: “Any approval by [defendant]
of any work to be done by the Cooperator [plaintiff] will not be considered a waiver of any of the
terms of the Proprietary Lease (“Lease”) including the House Rules.” Section 10 thus does not
abrogate the continued effectiveness of the Alteration Agreement, Dryer Inspection Letter or
Lease (“Contracts”) as binding contracts. If defendant can change the House Rules at any time
and thereby permit the defendant unilaterally to abrogate and revoke existing contracts such as
the Contracts, then contracts with defendant have no meaning. That cannot possibly be the result
here.
7
15. Defendant does not have the right to remove or to cause the removal of any
previously approved alterations covered by Paragraphs Nineteenth and Twentieth of the Lease
and the existing Contracts that pre-dated the 2012 House Rules.
16. All of the renovations in issue, including the vent, have existed in the real estate
that is the subject of plaintiff’s Lease for more than ten (10) years. If there are ambiguities or
inconsistencies between or among any of the Contracts and the 2012 House Rules, those must be
construed against the drafter, which was defendant, and the provisions of the Contracts must
prevail over ambiguous or inconsistent and conflicting provisions in the 2012 House Rules.
NATURE OF ACTION; PARTIES
17. Different forms of relief are sought in this action, including that this is an action
to compel the determination of a claim to real property that is commenced pursuant to New York
Real Property Actions and Proceedings Law Article 15, and specifically § 1515 (“RPAPL
1515”), and alternatively under the CPLR including Article 78, for the declaratory, injunctive
and money damage claims set forth in this Complaint. RPAPL § 1551 provides: “Nothing
contained in this article shall be construed to limit any other remedy in law or equity.”
18. Plaintiff is Helen Siller ("plaintiff" or "Helen"). Plaintiff resides in the City and
State of New York in a combined apartment with combined terraces, Apartments 12R and 12T
(the “Premises”), in defendant’s cooperative apartment building with a street address of 11 Fifth
Avenue, New York, New York 10003-4342, Block 566, Lot 1, New York County (the
“Building"), having New York City Department of Buildings Certificate of Occupancy No.
102130 dated February 5, 1993 (the “Certificate of Occupancy”). Helen resides in the Premises
with her husband, Stephen I. Siller (“Stephen”) pursuant to two proprietary leases, the duration
of which is as long as plaintiff (or her estate) owns shares of common stock in defendant or, if
later, until September 30, 2025 (unless subsequently extended by amendment to each proprietary
8
lease as to all shareholders equally). Those two proprietary leases are identical except as to the
apartment they identify; they are herein individually and collectively called the “Lease” or
“Leases.” Plaintiff and her husband purchased Apartment 12T in 1980 and Apartment 12R in
1990. Effective April 18, 2001, Stephen transferred his interest in the shares and proprietary
Leases for the Apartments to Helen who is the sole owner of the shares and Leases attributable to
the Premises. Plaintiff is not in default of any of her obligations to defendant.
19. Paragraphs 8, 13, 18 and 37 (and other Paragraphs in this Complaint) set forth
plaintiff's estate or interest in the real property, the particular nature of such estate or interest, and
the source from or means by which the plaintiff's estate or interest immediately accrued to her.
Plaintiff’s estate or interest therein is for a term of years, and the balance remaining of such term
of years is not less than five.
20. The relief plaintiff seeks in this Complaint is not being sought by plaintiff in any
other action or proceeding.
21. Defendant claims that it has the right to revoke and abrogate the Alteration
Agreement and Dryer Vent Inspection Letter and that plaintiff has no right to maintain the
alterations, inclusive of the washer/dryer and vent. It thus appears that defendant claims or
might claim an estate or interest in the real property that is adverse to that of plaintiff, and the
particular nature of such estate or interest is as set forth in this Complaint.
22. Defendant The Third Brevoort Corporation ("defendant") is a corporation
incorporated on or about March 29, 1968 under the laws of the State of New York, has New
York Department of State Identification Number 221591, and is authorized to do business in the
State of New York. Defendant is a cooperative housing corporation and is or is intended to be
such under the United States Internal Revenue Code and the laws of the State of New York. At
all times relevant to this action defendant has owned the Building in fee simple. Defendant
9
leases apartment units in the Building to its shareholders, including plaintiff, pursuant to
proprietary leases all of which are in the same form as the Lease. Defendant owned, operated,
managed, and/or controlled, directed or supervised the management of the Building at all times
relevant to this action. Accordingly, the defendant is known, and as a cooperative housing
corporation is not an infant, mentally retarded, mentally ill or an alcohol abuser.
23. Because this action involves the Contracts between plaintiff and defendant, the
judgment in this action will not affect a person or persons not in being or ascertained at the
commencement of this action, who by any contingency contained in a devise or grant or
otherwise, could afterward become entitled to a beneficial estate or interest in the property
involved; and every person in being who would have been entitled to such estate or interest if
such event had happened immediately before the commencement of this action is named as a
party to this action.
24. Plaintiff believes that defendant’s mortgagee(s) are not necessary parties at this
time but, if this Court determines that they are, plaintiff will add them as parties’ defendant and
serve them with a copy of this Complaint. Plaintiff believes that one or more of defendant’s
other shareholders might be affected by the judgment in this action, all of whom are parties to the
same form of Lease, if they also are parties to an “alteration agreement” that pre-dates the 2012
House Rules and involves matters those 2012 House Rules purport to change. The identity of
any such other shareholder or shareholders is not known to plaintiff. Plaintiff’s husband,
Stephen, resides in the Apartment and might inherit the same if plaintiff predeceases Stephen,
but he is not a necessary party. If Stephen is a necessary party, then plaintiff and Stephen would
proceed with this action pro se or would do so with the assistance of one or more other attorneys.
25. Because this action involves the Contracts between plaintiff and defendant,
plaintiff believes that the People of the State of New York, represented by the Attorney General
10
(“AG”), are not necessary parties notwithstanding that the AG has regulatory oversight of
cooperative housing corporations in the State of New York, such as defendant, which filed an
Offering Statement dated September 10, 1968 with the AG (the “Offering Statement”). The
Offering Statement on page 11 states: “Special electrical appliances, such as electric ranges,
clothes washing machines and clothes dryers may not be installed after the Offering Date of the
Plan [meaning the Plan set forth in the Offering Statement which was filed with and approved by
the AG] without the prior written consent of the board of directors elected by the tenant-
shareholders (which consent may or may not authorize their removal by the lessee on termination
of the lease or vacating the apartment).” Plaintiff obtained defendant’s written approval for the
washer, dryer and vent.
26. Paragraph 18 and other Paragraphs of this Complaint describe the property
claimed with certainty by setting forth the name of the township or tract and the number of the
lot, or in another appropriate manner, so that from that description, possession of the property
claimed may be delivered where the plaintiff is entitled thereto; no personal claim is made
against any defendant other than the defendant named in this Complaint because that defendant
has asserted a claim adverse to the claim of the plaintiff.
27. The plaintiff’s demand for judgment is to the effect that the defendant and every
person claiming under defendant be barred from all claim to an estate or interest in the property
described in this Complaint, specifically the vent or flue through the bricks in Apartment 12R
and from prohibiting replacement of the washer/dryer with like appliances, or that possession be
awarded to the plaintiff to effect the same by deeming those offending parts of the 2012 House
Rules null and void. Plaintiff combines this demand with each and every other demand for relief
set forth in this Complaint.
BACKGROUND
11
28. On July 1, 1980, defendant consented to Helen and Stephen accepting from the
seller thereof the assignment of the Lease and transfer of 383 shares of the defendant’s capital
stock allocated to Apartment 12T in the Building. In or about the fall of 1989, Helen and
Stephen became aware that an adjacent unit, Apartment 12R, was available for purchase. Helen
and Stephen wished to purchase Apartment 12R for a number of reasons, including converting
the 12R kitchen into an exercise and laundry room that would contain a new clothes washer and
gas clothes dryer that would utilize the existing gas connection to the 12R stove that would be
removed, and would exhaust out through a duct to a new vent or flue onto the 12R terrace.
29. Apartment 12T did not have a washer or dryer in 1989. Helen and Stephen
advised defendant that they would not purchase Apartment 12R unless they could combine
Apartment 12R with 12T and make certain renovations to both 12R and 12T, including installing
a washer and dryer that would vent out onto the terrace. Defendant agreed to allow Helen and
Stephen to combine both Apartments and to make certain renovations to both Apartments,
including adding a washer and gas dryer that vented to the terrace.
30. Helen and Stephen contracted to purchase 12R on or about December 15, 1989
(the “12R Contract”). Helen’s and Stephen’s attorney said in a December 26, 1989 letter to
defendant’s then-managing agent “that paragraph 6.1 of the [12R] Contract [which was enclosed
with that letter] requires the Sillers to obtain the approval of the [defendant] to the joining of
Apartment 12R with Apartment 12T (the apartment in which the Sillers currently reside). We
request that the Board’s approval of the Sillers’ purchase of Apartment 12R include the approval,
in concept, of the joining by the Sillers of the two apartments, subject to the Board’s further
review and approval, at a later date, of all architectural plans and drawings outlining the work in
detail that would be needed to join the two apartments. We understand that the Board’s
approval, in concept, to the joining of the two apartments will not be deemed an approval by the
12
Board to the actual changes that remain to be proposed to the Board, which approval cannot be
given until the Board has reviewed and approved the plans which will be submitted by the Sillers
at a later date.”
31. By letter dated February 14, 1990, defendant approved the 12R Contract and
Helen’s and Stephen’s purchase of Apartment 12R. The minutes of defendant’s August 22, 1990
board meeting stated: “It was noted that alterations combining apartments 12R and 12T by Mr.
Siller was [sic] approved by the Board at the meeting on July 24th and the minutes of that
meeting were corrected to reflect that.”
32. Defendant prepared and delivered to Helen and Stephen an “alteration agreement”
in or about May 1990, before Helen and Stephen purchased Apartment 12R. On or about June
25, 1990 Helen, Stephen and defendant executed the alteration agreement with minor
modifications requested by Helen and Stephen (the “Alteration Agreement”). Defendant’s board
of directors approved the alterations on July 24, 1990, all of which occurred before Helen and
Stephen closed on the purchase of 12R.
33. Defendant’s 1985 House Rules were in effect in 1990. Paragraph 3.3 of the 1985
House Rules provided: “No ventilator, air-conditioning device, dishwasher, clothes washer,
clothes dryer or other apparatus shall be installed by the Lessee without prior written approval of
the Lessor as to the type, location and manner of installation of such device. Each Lessee shall
keep any such device in good appearance and mechanical repair.” Defendant (Lessor) gave
plaintiff its prior written approval to install a washer and gas dryer that vented to the 12R terrace.
34. Plaintiff’s architect filed plans with defendant and the appropriate government
agencies. The New York City Landmarks Preservation Commission issued a “Certificate of No
Effect” on August 21, 1990. The New York City Department of Buildings issued a Building
Permit on September 28, 1990. In reliance on defendant's approval, on or about September 4,
13
1990, Helen and Stephen accepted an assignment of the 12R Lease from Dr. Richard Marcus, the
lessee and owner of the shares allocated to Apartment 12R, and purchased the 298 shares
allocated to Apartment 12-R from Dr. Marcus. Thereafter, Helen’s and Stephen’s ownership in
the Building totaled 681 shares of defendant’s common stock. Defendant executed its written
consent to that assignment and purchase on September 21, 1990.
35. In reliance on the foregoing, Helen and Stephen began substantial renovations to
combine 12R with 12T, including the installation of a clothes washer and clothes dryer that
vented to the 12R terrace. The combination and renovation of Apartments 12R and 12T
(“Renovations”) were completed in the spring of 1991. The combined Apartments 12R and 12T
are herein called the "Apartment" or, as defined above, the “Premises”.
36. The Certificate of Occupancy for the Building was amended to reflect the
combination of Apartments 12R and 12T into one unit after Helen and Stephen called to the
attention of defendant certain violations on the Building that prevented an amended Certificate of
Occupancy from being issued. Defendant cleared up those violations and on or about February
5, 1993, Helen and Stephen delivered to defendant an amended Certificate of Occupancy to
reflect their Apartment combination into one unit.
37. The Renovations included (a) installation of a clothes washer and a gas clothes
dryer that exhausted through a duct and vent or flue through the Building’s brick wall out on to
the 12R terrace; (b) an exhaust vent or flue through the Building’s brick wall above the stove in
12T (approved and completed in 1995); (c) a window air conditioner in the kitchen of 12R which
became a combination laundry room and exercise room, which fronted out onto the 12R terrace
because there is no room in the bricks to install a through the wall air conditioner; (d) two air
conditioning units that extended out onto the terrace through their through-the-Building’s brick
wall sleeves; and (e) a split unit air conditioner in the 12T kitchen where the interior and exterior
14
parts of the air conditioner are connected through a hole in the Building’s brick wall such that the
exterior portion of the air conditioner is affixed to a steel frame bolted into the exterior brick on
the 12T terrace2. These Renovations are herein called the “23 Year Old Existing Conditions,”
and all of them were approved by defendant pursuant to and in accordance with the Contracts.
38. Plaintiff’s claim to maintain, repair and replace the 23 Year Old Existing
Conditions is presently and immediately adverse to defendant’s claim, at least regarding the
items identified in Paragraphs 37(a), and absent a resolution of this matter plaintiff’s claim to
maintain, repair and replace the other 23 Year Old Existing Conditions identified in Paragraphs
47(b), (c), (d) and (e) will be issues that would be resolved by a judgment in this action because
they involve the same facts and same Contracts. Plaintiff’s rights in, creation and maintenance
of the 23 Year Old Existing Conditions have been approved by defendant, have been inspected
by defendant, have been open and notorious and vested in plaintiff since at least 1991 (and
possibly since 1995 regarding the item in Paragraph 47(b)), and under a claim of right under the
Contracts.
39. Pursuant to the Alteration Agreement and Paragraphs Nineteenth and twentieth of
the Lease, Helen and Stephen are obligated to maintain, repair and replace the 23 Year Old
Existing Conditions, including but not limited to the “waterproofing” of the affected parts of the
Building. Each of the 23 Year Old Existing Conditions involves weatherproofing because all
involve cuts into the Building’s brick walls from the interior to the exterior out on to the terraces
of 12R and 12T. The Contracts are all still in full force and effect, are all extant contracts, and
all are binding on defendant as well as plaintiff.
40. Defendant’s president, chief executive officer and member of the defendant’s
board of directors is an attorney licensed to practice law in New York, Diane C. Nardone, Esq.
2
The terraces of 12R and 12T adjoin, and the dividing railing was removed as part of the Renovations.
15
(the “President”), who made or caused to be made all decisions and actions, including omissions
to act, relevant to the matters in this Complaint.
41. Plaintiff’s clothes washer needs repair but parts are no longer available for it so it
cannot be repaired. Although the gas dryer works fine, it is contained in the same combination
washer/dryer unit with the washer so the washer cannot be replaced without replacing both
which is what plaintiff wishes to do. The units plaintiff wishes to purchase and install are
“Energy Star” rated appliances and would be either another single unit containing a clothes
washer and clothes dryer (of the same brand as currently exist in the 23 Year Old Conditions) or
two units that stack (of a different brand), both of which, in either case, would connect to the
same electrical and water connections, same gas inlet pipe and same exhaust vent, all as
currently exist as part of the 23 Year Old Conditions.
42. Being a good cooperator and looking to continue to abide by defendant’s rules,
plaintiff on January 29, 2014 asked defendant for approval to replace the washer/dryer which are
part of the 23 Year Old Existing Conditions, with the washer/dryer described in Paragraph 41
above. On behalf of plaintiff, Stephen sent the following email to Ms. Brenda Ballison of
Douglas Elliman, defendant’s managing agent (“Managing Agent”) at 8:51 a.m. on January 29,
2014: “We may soon need a new stackable washer-gas dryer for our apartment. Right now we
have a Maytag stacked washer-gas dryer, both 120V, and the dryer is vented to the outside
through the bricks on our terrace, all done and approved some 23 years ago. Elgot Kitchen tells
us that the three brands approved by the Board – Asko, Miele and Bosch – do not make gas
dryers that vent out, and all require 230V. While we think we can make electrical changes
assuming we have enough amperage to our apartment on the 12R side, we want a gas dryer that
vents to the outside just like we have now. At the last shareholders’ meeting, Diane Nardone
said we would be grandfathered and allowed to have a vented gas dryer. Because the three
16
Board-specified brands will not work in our configuration, we need to consider other brands that
are stackable and include a gas dryer that vents to the outside. We are researching other brands
and may be limited in our selection to replacing what we have with another Maytag or possibly
with a Frigidaire or another brand. What has to happen for the Board to approve this since the
three Board-specified brands will not work for us?”
43. On January 28, 2014 at 9:16 a.m., defendant’s Managing Agent replied to
Stephen: “Please send me the specs on what you will think would work and I will have it
reviewed to see if we can accommodate. Thanks.” On January 31, 2014, at 7:56 a.m., Stephen
sent the specifications for a new Frigidaire washer/dryer in an email to defendant’s Managing
Agent and said: “Here are the links to the specifications for the washer and dryer we are
considering; I have also copied the specifications into this email below. The dryer would stack
on top of the washer, both are front-loading:”
44. On Friday, January 31, 2014, at 10:10 a.m., defendant’s Managing Agent replied
with: “Thanks will forward on to see if there is anything else we will need for approvals.” The
repairman visited plaintiff’s Apartment in the afternoon on that Friday, January 31, 2014, to
check the washer and on Monday, February 3, 2014, at 7:08 a.m., Stephen emailed defendant’s
Managing Agent: “The Maytag repairman visited us on Friday and our washer cannot be
repaired – parts are no longer available. Accordingly, we need a decision ASAP so we can order
the new washer/dryer. No alterations are involved here at all. All that is involved is removing
the existing washer/dryer and hooking up the new washer/dryer in the exact same space using the
exact same drain pipe, water connections, electric outlets, gas connection and existing vent to our
terrace.” At 3:16 p.m. on February 3, 2014, defendant’s Managing Agent emailed Stephen: “I
am checking for you and will have an answer hopefully tomorrow.”
17
45. Less than an hour later, defendant’s Managing Agent emailed Stephen at 4:06
p.m.: “The Board will not permit the washer/dryer that you are proposing. They have a new
type, self venting that has been approved. As far as they are aware there is no ‘grandfather’
situation for this. I can send you the information on the self venting machines tomorrow.”
46. No information on any self-venting dryers was ever sent to plaintiff or Stephen.
47. Shocked at this response, Stephen replied at 4:40 p.m. on February 3, 2014: “Not
interested in a self-venting anything. I asked Diane [the President] about this at the annual
meeting when Diane announced the three brands and I asked specifically about whether we
would be grandfathered since we have an existing vent and an existing hole in the bricks for the
vent. I would ask the Board to be rational about this since the Board approved our plans that
included the venting outside on our terrace. If the Board is essentially revoking this prior
approval and imposing a new condition, then I think I am entitled to be compensated for the
diminution in value and all other damages given that we went to great trouble to get this original
approval in the first place. I am willing to look at other brands that vent out. This ‘no’ should be
reconsidered. Thank you.”
48. Stephen added a postscript in a second email sent at 4:42 p.m. right after the prior
email: “PS – under the Board’s new rule, which I reject, what is to happen with the hole in the
wall and bricks? Doesn’t anyone on the Board think it dumb to start to patch an existing hole
that is impervious to the weather right now? If the Board thinks I am going to get a self-venting
anything and patch that hole at my expense, we will let a court decide. What we are doing here
is not an alteration. It is replacing two appliances with two appliances of the same type, just like
replacing a refrigerator or a dishwasher or oven, range or microwave. If the Board continues
with this, the legal fees the Board will incur in the name of this arbitrary rule will far exceed the
18
supposed benefit – and I see no benefit – of this rule.”
Preview
FILED: NEW YORK COUNTY CLERK 02/13/2014 INDEX NO. 151313/2014 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/13/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------x HELEN SILLER, : : Plaintiff, : : -against- : Index No. : THE THIRD BREVOORT : CORPORATION, : VERIFIED COMPLAINT : Defendant. : ----------------------------------------------------------x Plaintiff, by her attorney, Stephen I. Siller, for her Verified Complaint alleges as follows: PRELIMINARY STATEMENT OF THE CASE 1. Plaintiff regrets her need to seek judicial intervention over the matter of whether plaintiff is entitled to replace with the same or substantially the same machines, both a clothes washer and clothes dryer that were part of extensive alterations approved on June 25, 1990 by defendant, a cooperative housing corporation, when plaintiff and her husband purchased and obtained defendant’s written approval to combine their first apartment with their second, then- contracted for second and adjoining apartment. 2. The legal issue here is whether defendant can by its board of directors adopt new House Rules in 2012 that specify three specific brands of appliances, as opposed to simply requiring that appliances be Energy Star rated1 and thereby unilaterally abrogate or change the terms of executed contracts that are extant and binding on both defendant and plaintiff. Plaintiff says defendant cannot do that. Defendant says it can. Plaintiff also says that if the defendant’s 2012 House Rules are inconsistent with the executed contracts, or there is any ambiguity between them, the executed contracts must prevail. Otherwise, those contracts would have no 1 Defendant existed as a cooperative corporation for about 43 years without any brands of appliances having ever been specified in any House Rules. 1 meaning if defendant can abrogate them merely by defendant’s board of directors changing the House Rules. 3. Plaintiff’s non-legal summary of this case is: When I purchased apartment 12R in 1990 to combine it with apartment 12T at 11 Fifth Avenue (the “Brevoort”), it was with the view that I wanted to live out my life (if possible) in this space. With that in mind, I installed a single unit combination washer/dryer so that it would not be difficult to do laundry because I have a long history of back problems, as does my husband. Carrying laundry up and down to the Brevoort’s basement laundry room is a hardship for both of us. We obtained all the Landmark and defendant’s board approvals, and much expense, time and hard work were involved to combine our two apartments and do the renovations the defendant approved. Defendant’s current board of directors has stated that these approvals are not valid because they have “changed the rules.” Despite the fact that my approved clothes washer and gas clothes dryer with an approved vent to my terrace have been in place for twenty-three (23) years without incident, I am now told that I cannot replace my washer and vented gas dryer with like machines hooked up to the exact same connections, with absolutely no alterations being done to anything, because they would not be “approved” brands and do not self-vent under the defendant’s 2012 House Rules. Not only would this involve closing up the hole in the bricks, which common sense dictates should not be done, but the electrical requirements of the “approved brands” would entail unnecessary expensive and extensive electrical work. Had I known that this would occur after all the work, effort and expense to obtain the requisite approvals in 1990, and to do the alterations in 1990-1991, I would never have undertaken this project. Defendant’s behavior is unfair and capricious and to me seems like it is intended to exact pain from someone who has always “played by the rules.” 2 4. The alteration agreement between plaintiff and defendant (Exhibit 1) (“Alteration Agreement”) was executed by both parties prior to plaintiff purchasing the second apartment, Apartment 12R. Section 8 of the Alteration Agreement provides that plaintiff’s contractor must certify in its agreement with the plaintiff “that the alterations are for the sole use and benefit of the Cooperator [plaintiff here]. The Cooperator agrees to assume all responsibility for the weather-tightness of any installation affecting exterior walls . . . and the waterproofing of any portion of the Building structure directly or indirectly affected by the Alterations and for the maintenance and performance of all heating, plumbing, air conditioning and other equipment installed, or altered, by the Cooperator, during the balance of their lease term.” (Emphasis added) 5. In 1990-91, plaintiff purchased and installed a then-new clothes washer and gas clothes dryer that ducts out through a vent onto plaintiff’s terrace. That duct and vent were part of plaintiff’s alterations and approved by defendant as is clear in the January 1992 letter defendant’s then superintendent sent to the plaintiff and defendant: “Re: Gas Dryer, Apt. 12R Laundry Room – I inspected the Vent connections in the Laundry Room of Apt. 12R. Also the connection of the Exhaust End located through the brick wall on their terrace area -- I found all the connections properly installed and free of leakage from water, or lint – Mel Cohen” (Exhibit 2) (“Dryer Vent Inspection Letter”). 6. Paragraph Twentieth of the Lease provides: “The Lessee [plaintiff] shall not, without first obtaining the written consent of the Lessor [defendant], make in the apartment, or on any roof, terrace or balcony appurtenant thereto, any structural alteration or any alteration of the water, gas or steam pipes, electrical conduits or plumbing or, except as hereinafter authorized, remove any additions, improvements or fixtures from the apartment. If the Lessee . . . shall hereafter place in the apartment any special additions, improvements or fixtures, such as . . 3 . airconditioning equipment . . . then the Lessee shall have the right, prior to termination of this lease, to remove the same at Lessee’s own expense.” (Emphasis added) This right to remove any such alterations resides solely with the Lessee, plaintiff here, and not with the Lessor- defendant. In reliance on that, plaintiff obtained defendant’s written consent and made the alterations including the vent through the bricks for the gas dryer to exhaust out to the terrace. 7. Paragraph Nineteenth of the Lease provides: “The Lessee . . . shall be solely responsible for the maintenance, repair and replacement of electrical, lighting, plumbing, gas and heating fixtures and equipment, and such . . . air conditioning units, washing machines, flues and ranges as may be in the apartment. Plumbing, gas and heating fixtures as used herein shall include gas, steam and water pipes and the equipment and fixtures to which they are attached from the point where such pipes, equipment or fixtures extend into the interior of the rooms in the apartment from the surface of the wall, floor or ceiling of the said rooms, and any special pipes or equipment which the Lessee may, with the consent of the Lessor, install within the wall or ceiling, or under the floor.” (Emphasis added) Accordingly, defendant cannot prevent plaintiff from replacing the washer and dryer which is connected to an existing vent or “flue.” 8. Paragraph Eighth of the Lease provides: “A lessee of an apartment having direct access to a terrace or balcony shall have and enjoy the exclusive use of a portion of such terrace or balcony which immediately adjoins the apartment, subject to the use of such terrace or balcony by the Lessor to enable it to fulfill its obligations hereunder.” (Emphasis added) Plaintiff has such direct access and the exhaust duct from the gas dryer, as approved by defendant, vents out onto plaintiff’s terrace over which plaintiff has the “exclusive use.” 9. Paragraph Sixteenth of the Lease provides: “The Lessor may from time to time establish such reasonable house rules as its board of directors may deem necessary for the management and control of the building, and may also from time to time alter, amend and repeal 4 such rules.” (Emphasis added) The part of the 2012 House Rules specifying three brands of appliances or prohibiting a vent or flue that defendant is asserting apply to replacement of plaintiff’s washer/dryer are neither reasonable nor in any way “necessary for the management and control of the building,” especially considering that plaintiff’s use of her terrace is exclusive as to her under Paragraph Eighth of the Lease quoted in Paragraph 8 above. 10. The 2012 House Rules, which were effective April 1, 2012, that are relevant to plaintiff’s washer-dryer are: 10.1. Section 4: “[W]ashing machines, clothes dryers, and all other such devices require Lessor’s prior written approval, whether Lessee is installing new devices or replacing old devices and must have Energy Star Ratings. Except as otherwise permitted in the Alterations Agreement, a Lessee seeking approval to install a washing machine and/or clothes dryer is limited to three brands: Miele, Bosch, and Asko. All clothes dryers shall be self-venting. Lessee shall have an affirmative obligation to determine from Lessor’s managing Agent whether an Alterations Agreement is necessary for the installation of any device or machine covered by this paragraph.” 10.2. Section 77: “No . . . ventilators, air conditioners . . . or objects that protrude or project from the building shall be used or installed unless expressly approved in writing by the Lessor.” 10.3. Section 78: “No window air conditioner may be installed OR [sic] replaced in any apartment without the express prior written consent of the Lessor. 10.4. Section 79: “No through-the-wall air conditioner may be replaced or installed without the express prior written consent of the Lessor. Through-the-wall air conditioners must comply with all terms and conditions specified in the most current Alterations Agreement and all attached Exhibits, which documents are incorporated herein by reference.” 5 10.5. Section 100: “No determination, decision, consent, permission or approval by Lessor (collectively “Decisions”) given by Lessor under these House Rules shall create any legal rights in the Lessee or any third party and such Decisions shall be revocable by the Lessor at any time. . . . Such Decisions are made by the Board of Directors in the exercise of its sole and absolute discretion in accordance with the Corporation’s By-Laws, the Lease, and the House Rules, as they may be amended from time to time.” (Emphasis added) 11. Sections 4, 77, 78, 79 and 100 seem to be the only provision in the 2012 House Rules that defendant is applying to plaintiff’s washer/dryer and will likely apply to replacement of appliances and devices installed as part of plaintiff’s renovations that defendant expressly approved in writing in 1990 and which are covered by the Alteration Agreement and the Dryer Vent Inspection Letter. All of the brands identified in the 2012 House Rules require 230 volts electricity and thus upgrades to the electrical service to 12R and larger amperage breakers than currently exist, and all are self-venting dryers. The 2012 House Rules do not address existing washers, dryers, vents or flues that are already the subject of the existing Alteration Agreement. Plaintiff’s washer and dryer and existing electric service are 115 volts electricity, 15 or 20 amperage breakers, and the dryer is a gas dryer that vents to the exterior as it has done for 23 years as approved by the defendant’s board, the Alteration Agreement, and the Dryer Vent Inspection Letter, all as contemplated in Paragraphs Nineteenth and Twentieth of the Lease. 12. Section 100 of the 2012 House Rules, which gives defendant’s board of directors the right to exercise “its sole and absolute discretion in accordance with . . . the Lease,” is in direct conflict with and violates the Lease which in Paragraph Sixteenth, as quoted in Paragraph 10 above, circumscribe\s board action in two ways: (1) The House Rules adopted by the board must be “reasonable” and (2) The House Rules must be deemed by defendant’s board of directors to be “necessary for the management and control of the building.” Sections 4, 77, 78, 6 79 and 100 of the House Rules are neither “reasonable” nor upon information and belief have they been deemed by defendant’s board of directors as “necessary for the management and control of the building.” Moreover, defendant’s architect reviewed plaintiff’s alteration plans and in a July 12, 1990 letter to defendant’s managing agent referred to plaintiff installing a washer and dryer and said: “The proposed alteration appears to be moderate in scope and I believe will have no adverse impact on the building other than that typically created by interior alterations.” 13. Plaintiff’s use of her terrace is exclusive to her. Plaintiff’s washer, dryer, vent, and hole in the bricks have existed with defendant’s written approval since 1990-1991. The 2012 House Rules that regulate the brands of washers/dryers have no reasonable relationship to anything other than perhaps that they need to be Energy Star rated which the units proposed to be installed by plaintiff are. No new alteration agreement is needed since nothing is being altered. Defendant is deeming a mere replacement of appliances without any change in the lessee, electricity, drain, venting or dimensions of the appliances to be an “alteration.” Nothing about that is either “reasonable” or implicated in the “management and control of the building.” 14. Section 10 of the Alteration Agreement provides: “Any approval by [defendant] of any work to be done by the Cooperator [plaintiff] will not be considered a waiver of any of the terms of the Proprietary Lease (“Lease”) including the House Rules.” Section 10 thus does not abrogate the continued effectiveness of the Alteration Agreement, Dryer Inspection Letter or Lease (“Contracts”) as binding contracts. If defendant can change the House Rules at any time and thereby permit the defendant unilaterally to abrogate and revoke existing contracts such as the Contracts, then contracts with defendant have no meaning. That cannot possibly be the result here. 7 15. Defendant does not have the right to remove or to cause the removal of any previously approved alterations covered by Paragraphs Nineteenth and Twentieth of the Lease and the existing Contracts that pre-dated the 2012 House Rules. 16. All of the renovations in issue, including the vent, have existed in the real estate that is the subject of plaintiff’s Lease for more than ten (10) years. If there are ambiguities or inconsistencies between or among any of the Contracts and the 2012 House Rules, those must be construed against the drafter, which was defendant, and the provisions of the Contracts must prevail over ambiguous or inconsistent and conflicting provisions in the 2012 House Rules. NATURE OF ACTION; PARTIES 17. Different forms of relief are sought in this action, including that this is an action to compel the determination of a claim to real property that is commenced pursuant to New York Real Property Actions and Proceedings Law Article 15, and specifically § 1515 (“RPAPL 1515”), and alternatively under the CPLR including Article 78, for the declaratory, injunctive and money damage claims set forth in this Complaint. RPAPL § 1551 provides: “Nothing contained in this article shall be construed to limit any other remedy in law or equity.” 18. Plaintiff is Helen Siller ("plaintiff" or "Helen"). Plaintiff resides in the City and State of New York in a combined apartment with combined terraces, Apartments 12R and 12T (the “Premises”), in defendant’s cooperative apartment building with a street address of 11 Fifth Avenue, New York, New York 10003-4342, Block 566, Lot 1, New York County (the “Building"), having New York City Department of Buildings Certificate of Occupancy No. 102130 dated February 5, 1993 (the “Certificate of Occupancy”). Helen resides in the Premises with her husband, Stephen I. Siller (“Stephen”) pursuant to two proprietary leases, the duration of which is as long as plaintiff (or her estate) owns shares of common stock in defendant or, if later, until September 30, 2025 (unless subsequently extended by amendment to each proprietary 8 lease as to all shareholders equally). Those two proprietary leases are identical except as to the apartment they identify; they are herein individually and collectively called the “Lease” or “Leases.” Plaintiff and her husband purchased Apartment 12T in 1980 and Apartment 12R in 1990. Effective April 18, 2001, Stephen transferred his interest in the shares and proprietary Leases for the Apartments to Helen who is the sole owner of the shares and Leases attributable to the Premises. Plaintiff is not in default of any of her obligations to defendant. 19. Paragraphs 8, 13, 18 and 37 (and other Paragraphs in this Complaint) set forth plaintiff's estate or interest in the real property, the particular nature of such estate or interest, and the source from or means by which the plaintiff's estate or interest immediately accrued to her. Plaintiff’s estate or interest therein is for a term of years, and the balance remaining of such term of years is not less than five. 20. The relief plaintiff seeks in this Complaint is not being sought by plaintiff in any other action or proceeding. 21. Defendant claims that it has the right to revoke and abrogate the Alteration Agreement and Dryer Vent Inspection Letter and that plaintiff has no right to maintain the alterations, inclusive of the washer/dryer and vent. It thus appears that defendant claims or might claim an estate or interest in the real property that is adverse to that of plaintiff, and the particular nature of such estate or interest is as set forth in this Complaint. 22. Defendant The Third Brevoort Corporation ("defendant") is a corporation incorporated on or about March 29, 1968 under the laws of the State of New York, has New York Department of State Identification Number 221591, and is authorized to do business in the State of New York. Defendant is a cooperative housing corporation and is or is intended to be such under the United States Internal Revenue Code and the laws of the State of New York. At all times relevant to this action defendant has owned the Building in fee simple. Defendant 9 leases apartment units in the Building to its shareholders, including plaintiff, pursuant to proprietary leases all of which are in the same form as the Lease. Defendant owned, operated, managed, and/or controlled, directed or supervised the management of the Building at all times relevant to this action. Accordingly, the defendant is known, and as a cooperative housing corporation is not an infant, mentally retarded, mentally ill or an alcohol abuser. 23. Because this action involves the Contracts between plaintiff and defendant, the judgment in this action will not affect a person or persons not in being or ascertained at the commencement of this action, who by any contingency contained in a devise or grant or otherwise, could afterward become entitled to a beneficial estate or interest in the property involved; and every person in being who would have been entitled to such estate or interest if such event had happened immediately before the commencement of this action is named as a party to this action. 24. Plaintiff believes that defendant’s mortgagee(s) are not necessary parties at this time but, if this Court determines that they are, plaintiff will add them as parties’ defendant and serve them with a copy of this Complaint. Plaintiff believes that one or more of defendant’s other shareholders might be affected by the judgment in this action, all of whom are parties to the same form of Lease, if they also are parties to an “alteration agreement” that pre-dates the 2012 House Rules and involves matters those 2012 House Rules purport to change. The identity of any such other shareholder or shareholders is not known to plaintiff. Plaintiff’s husband, Stephen, resides in the Apartment and might inherit the same if plaintiff predeceases Stephen, but he is not a necessary party. If Stephen is a necessary party, then plaintiff and Stephen would proceed with this action pro se or would do so with the assistance of one or more other attorneys. 25. Because this action involves the Contracts between plaintiff and defendant, plaintiff believes that the People of the State of New York, represented by the Attorney General 10 (“AG”), are not necessary parties notwithstanding that the AG has regulatory oversight of cooperative housing corporations in the State of New York, such as defendant, which filed an Offering Statement dated September 10, 1968 with the AG (the “Offering Statement”). The Offering Statement on page 11 states: “Special electrical appliances, such as electric ranges, clothes washing machines and clothes dryers may not be installed after the Offering Date of the Plan [meaning the Plan set forth in the Offering Statement which was filed with and approved by the AG] without the prior written consent of the board of directors elected by the tenant- shareholders (which consent may or may not authorize their removal by the lessee on termination of the lease or vacating the apartment).” Plaintiff obtained defendant’s written approval for the washer, dryer and vent. 26. Paragraph 18 and other Paragraphs of this Complaint describe the property claimed with certainty by setting forth the name of the township or tract and the number of the lot, or in another appropriate manner, so that from that description, possession of the property claimed may be delivered where the plaintiff is entitled thereto; no personal claim is made against any defendant other than the defendant named in this Complaint because that defendant has asserted a claim adverse to the claim of the plaintiff. 27. The plaintiff’s demand for judgment is to the effect that the defendant and every person claiming under defendant be barred from all claim to an estate or interest in the property described in this Complaint, specifically the vent or flue through the bricks in Apartment 12R and from prohibiting replacement of the washer/dryer with like appliances, or that possession be awarded to the plaintiff to effect the same by deeming those offending parts of the 2012 House Rules null and void. Plaintiff combines this demand with each and every other demand for relief set forth in this Complaint. BACKGROUND 11 28. On July 1, 1980, defendant consented to Helen and Stephen accepting from the seller thereof the assignment of the Lease and transfer of 383 shares of the defendant’s capital stock allocated to Apartment 12T in the Building. In or about the fall of 1989, Helen and Stephen became aware that an adjacent unit, Apartment 12R, was available for purchase. Helen and Stephen wished to purchase Apartment 12R for a number of reasons, including converting the 12R kitchen into an exercise and laundry room that would contain a new clothes washer and gas clothes dryer that would utilize the existing gas connection to the 12R stove that would be removed, and would exhaust out through a duct to a new vent or flue onto the 12R terrace. 29. Apartment 12T did not have a washer or dryer in 1989. Helen and Stephen advised defendant that they would not purchase Apartment 12R unless they could combine Apartment 12R with 12T and make certain renovations to both 12R and 12T, including installing a washer and dryer that would vent out onto the terrace. Defendant agreed to allow Helen and Stephen to combine both Apartments and to make certain renovations to both Apartments, including adding a washer and gas dryer that vented to the terrace. 30. Helen and Stephen contracted to purchase 12R on or about December 15, 1989 (the “12R Contract”). Helen’s and Stephen’s attorney said in a December 26, 1989 letter to defendant’s then-managing agent “that paragraph 6.1 of the [12R] Contract [which was enclosed with that letter] requires the Sillers to obtain the approval of the [defendant] to the joining of Apartment 12R with Apartment 12T (the apartment in which the Sillers currently reside). We request that the Board’s approval of the Sillers’ purchase of Apartment 12R include the approval, in concept, of the joining by the Sillers of the two apartments, subject to the Board’s further review and approval, at a later date, of all architectural plans and drawings outlining the work in detail that would be needed to join the two apartments. We understand that the Board’s approval, in concept, to the joining of the two apartments will not be deemed an approval by the 12 Board to the actual changes that remain to be proposed to the Board, which approval cannot be given until the Board has reviewed and approved the plans which will be submitted by the Sillers at a later date.” 31. By letter dated February 14, 1990, defendant approved the 12R Contract and Helen’s and Stephen’s purchase of Apartment 12R. The minutes of defendant’s August 22, 1990 board meeting stated: “It was noted that alterations combining apartments 12R and 12T by Mr. Siller was [sic] approved by the Board at the meeting on July 24th and the minutes of that meeting were corrected to reflect that.” 32. Defendant prepared and delivered to Helen and Stephen an “alteration agreement” in or about May 1990, before Helen and Stephen purchased Apartment 12R. On or about June 25, 1990 Helen, Stephen and defendant executed the alteration agreement with minor modifications requested by Helen and Stephen (the “Alteration Agreement”). Defendant’s board of directors approved the alterations on July 24, 1990, all of which occurred before Helen and Stephen closed on the purchase of 12R. 33. Defendant’s 1985 House Rules were in effect in 1990. Paragraph 3.3 of the 1985 House Rules provided: “No ventilator, air-conditioning device, dishwasher, clothes washer, clothes dryer or other apparatus shall be installed by the Lessee without prior written approval of the Lessor as to the type, location and manner of installation of such device. Each Lessee shall keep any such device in good appearance and mechanical repair.” Defendant (Lessor) gave plaintiff its prior written approval to install a washer and gas dryer that vented to the 12R terrace. 34. Plaintiff’s architect filed plans with defendant and the appropriate government agencies. The New York City Landmarks Preservation Commission issued a “Certificate of No Effect” on August 21, 1990. The New York City Department of Buildings issued a Building Permit on September 28, 1990. In reliance on defendant's approval, on or about September 4, 13 1990, Helen and Stephen accepted an assignment of the 12R Lease from Dr. Richard Marcus, the lessee and owner of the shares allocated to Apartment 12R, and purchased the 298 shares allocated to Apartment 12-R from Dr. Marcus. Thereafter, Helen’s and Stephen’s ownership in the Building totaled 681 shares of defendant’s common stock. Defendant executed its written consent to that assignment and purchase on September 21, 1990. 35. In reliance on the foregoing, Helen and Stephen began substantial renovations to combine 12R with 12T, including the installation of a clothes washer and clothes dryer that vented to the 12R terrace. The combination and renovation of Apartments 12R and 12T (“Renovations”) were completed in the spring of 1991. The combined Apartments 12R and 12T are herein called the "Apartment" or, as defined above, the “Premises”. 36. The Certificate of Occupancy for the Building was amended to reflect the combination of Apartments 12R and 12T into one unit after Helen and Stephen called to the attention of defendant certain violations on the Building that prevented an amended Certificate of Occupancy from being issued. Defendant cleared up those violations and on or about February 5, 1993, Helen and Stephen delivered to defendant an amended Certificate of Occupancy to reflect their Apartment combination into one unit. 37. The Renovations included (a) installation of a clothes washer and a gas clothes dryer that exhausted through a duct and vent or flue through the Building’s brick wall out on to the 12R terrace; (b) an exhaust vent or flue through the Building’s brick wall above the stove in 12T (approved and completed in 1995); (c) a window air conditioner in the kitchen of 12R which became a combination laundry room and exercise room, which fronted out onto the 12R terrace because there is no room in the bricks to install a through the wall air conditioner; (d) two air conditioning units that extended out onto the terrace through their through-the-Building’s brick wall sleeves; and (e) a split unit air conditioner in the 12T kitchen where the interior and exterior 14 parts of the air conditioner are connected through a hole in the Building’s brick wall such that the exterior portion of the air conditioner is affixed to a steel frame bolted into the exterior brick on the 12T terrace2. These Renovations are herein called the “23 Year Old Existing Conditions,” and all of them were approved by defendant pursuant to and in accordance with the Contracts. 38. Plaintiff’s claim to maintain, repair and replace the 23 Year Old Existing Conditions is presently and immediately adverse to defendant’s claim, at least regarding the items identified in Paragraphs 37(a), and absent a resolution of this matter plaintiff’s claim to maintain, repair and replace the other 23 Year Old Existing Conditions identified in Paragraphs 47(b), (c), (d) and (e) will be issues that would be resolved by a judgment in this action because they involve the same facts and same Contracts. Plaintiff’s rights in, creation and maintenance of the 23 Year Old Existing Conditions have been approved by defendant, have been inspected by defendant, have been open and notorious and vested in plaintiff since at least 1991 (and possibly since 1995 regarding the item in Paragraph 47(b)), and under a claim of right under the Contracts. 39. Pursuant to the Alteration Agreement and Paragraphs Nineteenth and twentieth of the Lease, Helen and Stephen are obligated to maintain, repair and replace the 23 Year Old Existing Conditions, including but not limited to the “waterproofing” of the affected parts of the Building. Each of the 23 Year Old Existing Conditions involves weatherproofing because all involve cuts into the Building’s brick walls from the interior to the exterior out on to the terraces of 12R and 12T. The Contracts are all still in full force and effect, are all extant contracts, and all are binding on defendant as well as plaintiff. 40. Defendant’s president, chief executive officer and member of the defendant’s board of directors is an attorney licensed to practice law in New York, Diane C. Nardone, Esq. 2 The terraces of 12R and 12T adjoin, and the dividing railing was removed as part of the Renovations. 15 (the “President”), who made or caused to be made all decisions and actions, including omissions to act, relevant to the matters in this Complaint. 41. Plaintiff’s clothes washer needs repair but parts are no longer available for it so it cannot be repaired. Although the gas dryer works fine, it is contained in the same combination washer/dryer unit with the washer so the washer cannot be replaced without replacing both which is what plaintiff wishes to do. The units plaintiff wishes to purchase and install are “Energy Star” rated appliances and would be either another single unit containing a clothes washer and clothes dryer (of the same brand as currently exist in the 23 Year Old Conditions) or two units that stack (of a different brand), both of which, in either case, would connect to the same electrical and water connections, same gas inlet pipe and same exhaust vent, all as currently exist as part of the 23 Year Old Conditions. 42. Being a good cooperator and looking to continue to abide by defendant’s rules, plaintiff on January 29, 2014 asked defendant for approval to replace the washer/dryer which are part of the 23 Year Old Existing Conditions, with the washer/dryer described in Paragraph 41 above. On behalf of plaintiff, Stephen sent the following email to Ms. Brenda Ballison of Douglas Elliman, defendant’s managing agent (“Managing Agent”) at 8:51 a.m. on January 29, 2014: “We may soon need a new stackable washer-gas dryer for our apartment. Right now we have a Maytag stacked washer-gas dryer, both 120V, and the dryer is vented to the outside through the bricks on our terrace, all done and approved some 23 years ago. Elgot Kitchen tells us that the three brands approved by the Board – Asko, Miele and Bosch – do not make gas dryers that vent out, and all require 230V. While we think we can make electrical changes assuming we have enough amperage to our apartment on the 12R side, we want a gas dryer that vents to the outside just like we have now. At the last shareholders’ meeting, Diane Nardone said we would be grandfathered and allowed to have a vented gas dryer. Because the three 16 Board-specified brands will not work in our configuration, we need to consider other brands that are stackable and include a gas dryer that vents to the outside. We are researching other brands and may be limited in our selection to replacing what we have with another Maytag or possibly with a Frigidaire or another brand. What has to happen for the Board to approve this since the three Board-specified brands will not work for us?” 43. On January 28, 2014 at 9:16 a.m., defendant’s Managing Agent replied to Stephen: “Please send me the specs on what you will think would work and I will have it reviewed to see if we can accommodate. Thanks.” On January 31, 2014, at 7:56 a.m., Stephen sent the specifications for a new Frigidaire washer/dryer in an email to defendant’s Managing Agent and said: “Here are the links to the specifications for the washer and dryer we are considering; I have also copied the specifications into this email below. The dryer would stack on top of the washer, both are front-loading:” 44. On Friday, January 31, 2014, at 10:10 a.m., defendant’s Managing Agent replied with: “Thanks will forward on to see if there is anything else we will need for approvals.” The repairman visited plaintiff’s Apartment in the afternoon on that Friday, January 31, 2014, to check the washer and on Monday, February 3, 2014, at 7:08 a.m., Stephen emailed defendant’s Managing Agent: “The Maytag repairman visited us on Friday and our washer cannot be repaired – parts are no longer available. Accordingly, we need a decision ASAP so we can order the new washer/dryer. No alterations are involved here at all. All that is involved is removing the existing washer/dryer and hooking up the new washer/dryer in the exact same space using the exact same drain pipe, water connections, electric outlets, gas connection and existing vent to our terrace.” At 3:16 p.m. on February 3, 2014, defendant’s Managing Agent emailed Stephen: “I am checking for you and will have an answer hopefully tomorrow.” 17 45. Less than an hour later, defendant’s Managing Agent emailed Stephen at 4:06 p.m.: “The Board will not permit the washer/dryer that you are proposing. They have a new type, self venting that has been approved. As far as they are aware there is no ‘grandfather’ situation for this. I can send you the information on the self venting machines tomorrow.” 46. No information on any self-venting dryers was ever sent to plaintiff or Stephen. 47. Shocked at this response, Stephen replied at 4:40 p.m. on February 3, 2014: “Not interested in a self-venting anything. I asked Diane [the President] about this at the annual meeting when Diane announced the three brands and I asked specifically about whether we would be grandfathered since we have an existing vent and an existing hole in the bricks for the vent. I would ask the Board to be rational about this since the Board approved our plans that included the venting outside on our terrace. If the Board is essentially revoking this prior approval and imposing a new condition, then I think I am entitled to be compensated for the diminution in value and all other damages given that we went to great trouble to get this original approval in the first place. I am willing to look at other brands that vent out. This ‘no’ should be reconsidered. Thank you.” 48. Stephen added a postscript in a second email sent at 4:42 p.m. right after the prior email: “PS – under the Board’s new rule, which I reject, what is to happen with the hole in the wall and bricks? Doesn’t anyone on the Board think it dumb to start to patch an existing hole that is impervious to the weather right now? If the Board thinks I am going to get a self-venting anything and patch that hole at my expense, we will let a court decide. What we are doing here is not an alteration. It is replacing two appliances with two appliances of the same type, just like replacing a refrigerator or a dishwasher or oven, range or microwave. If the Board continues with this, the legal fees the Board will incur in the name of this arbitrary rule will far exceed the 18 supposed benefit – and I see no benefit – of this rule.”