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(FILED: NEW YORK COUNTY CLERK 0571272014) INDEX NO. 151313/2014
NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 05/12/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
Index No, 151313/2014
HELEN SILLER,
Individually and derivatively as a shareholder of, and
on behalf of, The Third Brevoort Corporation,
Plaintiff,
~ against - AFFIDAVIT OF
HELEN SELLER IN
‘THE THIRD BREVOORT CORPORATION, SUPPORT OF PLAINTIFFS
DIANE C. NARDONE, CLIFF RUSSO, MOTION FOR PARTIAL
ELIZABETH LOUIF, ANDREW BAUM, SUMMARY JUDGMENT
GEORGE ALOI, CHRISTINE BECK, BONNIE
TILLER, MORTIMOR C. LAZARUS, JANE
WARREN, JOHN C. WOELL and BARBARA
EISENBERG,
Defendants.
Seana nneenennerenennenennnennenaauenenneoeneenen==" --X
STATE OF NEW YORK )
SS,
COUNTY OF NEW YORK ;
IIELEN SILLER, being duly sworn, deposes and says:
I [am the plaintiff in this action and submit this affidavit in support of my motion
for partial summary judgment on the first cause of action of my complaint. By that cause of
action, | seck declaratory and injunctive relief concerning the breach by defendant The Third
Brevoort Corporation (“Brevoort”) of its contractual obligations to me by refusing to permit me
to replace with comparable equipment a clothes washer and clothes dryer that were installed in
1991 with the Brevoort's approval as part of my apartment combination and associated
renovations that | made pursuant to the alteration agreement the Brevoort and my husband and T
signed in 1990. Because of the Brevoort’s refusal to abide its obligations le me, I currently am
without a functioning clothes washer. Because my washer and dryer are in a stacked unit with
shared controls, | cannoi replace my washer without also replacing my dryer. A photograph of
any washer and dryer is attached as Exhibit A.
2 As set forth in my verified complaint, a copy of which is annexed hereto as
Exhibit B, | am a tenant-sharehoider of apartments 12R and 12T in the cooperatively-owned
building located at 11 Fifth Avenue, New York, New York, of which the Brevoort is the owner.
Issue was joined on March !0, 2014 on the filing by the Brevoort of its verified answer, a copy
of which is annexed hereto as Exhibit C.
33 My occupancy of apartments 12R and 127 is subject to the terms of a proprietary
lease, a copy of which is annexed hereto as Exhibit
D.
4 Commencing in 1990, | combined apartments 12R and 121 into a single residence
pursuant {o an alteration agreement made with the Brevoort. A copy of the alteration agreement
is anncxed hereto as ExhibitE. In connection with the combination of the apartments, one
kitchen was converted into a laundry and exercise room and a washing machine and gas clothes
dryer were installed together with surrounding cabinetry. Complaint 437.
5. In late January 2014, it became necessary to replace the 23 year old washing
machine which could no longer be repaired. Complaint [41. Because the machine is “stacked”
with the clothes dryer on top and both units share a single control panel, both machines must be
replaced.
6 On January 29, 2014, my husband, Stephen I. Siller (“Stephen”), contacted the
Brevoort’s managing agent, Brenda Ballison of Douglas Elliman, for guidance respecting
obtaining approval for replacement of these appliances. Complaint [42. The replacement of
such machines purportedly requires the Brevoort’s prior written approval in accordance with
Rule 4 of the house rules. A copy of the complete house rules, amended and restated as of April
1, 2012, is annexed hereto as Exhibit F.
iy Ms. Ballison responded with a request for specifications concerning the proposed
new machines. Specifications were needed because the machines will be stacked and fitted
within the cxisting space of the old units, utilizing the same connections for gas, electric, water
and exhaust. The three brands listed in Rule 4 oi’ the house rules as already having the
Brevoort’s prior approval do not offer comparable equipment. Additionally, Rule 4 of the house
rules purports to require a self-venting electric clothes dryer while the machine being replaced is
a gas clothes dryer thal exhausts outside through an adjacent vent located on my terrace.
8 Stephen provided the specifications on January 31, 2014 by email. The machines
proposed are made by Frigidaire. The washer, like the units already approved by the Brevoort, is
a modern front loading, low sudsing machine that uses less water and has an Energy Star rating.
‘The dryer, which uses the existing gas service instead of electricity, is far more efficient than the
electric self-venting units specified in Rule 4 of the house rules.
9. Upon receipt of the specifications, Ms. Ballison responded by email: “Thanks
will forward on to see if there is anything else we will nced for approvals.” On February 3,
2014, Stephen followed up with Ms. Ballison explaining that it had now been confirmed that the
clothes washer could not be repaired. At 3:16 p.m., Ms. Ballison responded that she hoped to
have an answer the next day. Less than an hour later, however, she responded; “Phe Board will
not permit the washer/dryer you are proposing.” The explanation provided was that the Brevoort
would only approve and was insisting upon a self-venting electric clothes dryer.
10. Copies of the chain of communications concerning the request fur replacement of
the washing machine and clothes dryer are annexed collectively hereto as Exhibit G.
LL. Subsequent efforts to resolve the issue were unsuccessful. The Brevoort
continues to adhere to its arbitrary determination that the propused clothes dryer could not be
installed cven though it would utilize existing hookups and would be more efficient than an
electric self-venting unit. Likewise, the Brevoori refused to approve the Frigidaire washer even
though its perfurmance is equivalent or superior to the units bearing the brands identified in Rule
4 of the house rules. Especially troubling was the Brevoort’s disregard for the existing alteration
agreement pursuant to which it had consented years ago to the installation of the stacked washer/
dryer and related buildout, tn breach of that alteration agreement, and without any rational basis,
the Brevoort insists that we abandon these improvements and make alterations that 1 neither want
nor need solely to accommodate less efficient appliances.
12. Pursuant lo paragraph Nineteenth of the proprictary lease, I, as the lessee, am
responsible for maintaining the washing machine and clothes dryer in my apartment. ‘Yo that
end, I entered into the alteration agreement in May 1990 that enabled me to make alterations to
my apartment, including the installation of the laundry, That included the stacked washer/dryer
units, including the gas dryer that vents outside.
13. Tn response to my motion for a preliminary injunction, which the court denied for
lack of irreparable harm, the Brevoort’s president, Diane C, Nardone, postulated two reasons for
the current house rule concerning washers and dryers. She maintained that low sudsing washing
machines were required on account of the building's older pipes, and that self-venting dryers
would “cxist in harmony with a 1955 building by not penetrating and compromising our brick
facade.” Neither of these reasons, however, provides a basis for the Brevoort’s refusal to abide
the agreement that it made with me when | installed the laundry room. In the first instance, the
proposed washing machine will make no more soap suds than the models the Brevoort has
approved. See Aff. of Stephen Ross, sworn to March 8, 2014, at 41 1(a) (annexed hereto as
Exhibit) (“The nature and quantity of the laundry detergent, net the brand of washing machine,
determines the amount of suds. Accordingly. as far as sudsing goes, the brand plaintiff proposes
to purchase is as efficient in its sudsing attribute as defendant's three brands.”). {n the second
instanec, the vent for the dryer already exists and has existed in harmony with the bricks for
more than 23 years, thus rendering a less efficient sclf-venting electric dryer superfluous.
14, Moreover, house Rule 4, on which the Brevoort relies, expressly makes provision
—as it must — for exceptions to the rule. ‘The rule provides: “Except as otherwise permitted in
the Alterations Agreement ....” In my case, the Brevoort's then Board of Directors, upon
submission of complete plans, made “the final decision whether the alterations proposed to be
made may in fact be made.” Alteration Agreement at 1 (Exhibit D hereto). Having approved
my plans, there is no basis now for the breach of that agreement, particularly where the house
rule recognizes that exceptions have been and can be made.
15. Finally, it is important to note that the Brevoort is incorrect to the extent that il
has asserted that the adoption and implementation of house rules is substantially protected from
Judicial scrutiny by the business judgment rule. ‘The proprietary lease expressly requires that
house rules promulgated by the Brevuort’s board of directors be both “reasonable” and
“necessary for the operation and control of the building.” Here, on its face, house Rule 4
arbitrarily limits shareholders to three brands (as opposed to recommending them) and requires:
self-venting electric dryers even where there already exists a machine veuting (o the outside.
Tlowever, the issues of reasonableness and what is necessary for the operation and contro! of the
building need not be reached on this motion because of the exception to which I am entitled
under the existing alteration agreement between the Brevourt and me,
16. In conclusion, under the applicable agreements, I am entitled to replace my 23
year old washing machine and gas clothes dryer with a new set of stacked machines to fit the
same space and utilize the same hookups, including the exhaust vent. There are no material
issues of fact that require a delay in granting me this relief.
WHEREFORE, plaintiff's motion for partial summary judgment on the first cause
of action should be granted in its entirety together with such other and further relief as the Court
may deem just and proper.
Modo deh ns
Helen Siler
Sworn to before me this
™ day of May, 2014
Keen Steen
Notary Public
mea Fen ie Ne Yr
ae ee County
2018
Preview
(FILED: NEW YORK COUNTY CLERK 0571272014) INDEX NO. 151313/2014 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 05/12/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK Index No, 151313/2014 HELEN SILLER, Individually and derivatively as a shareholder of, and on behalf of, The Third Brevoort Corporation, Plaintiff, ~ against - AFFIDAVIT OF HELEN SELLER IN ‘THE THIRD BREVOORT CORPORATION, SUPPORT OF PLAINTIFFS DIANE C. NARDONE, CLIFF RUSSO, MOTION FOR PARTIAL ELIZABETH LOUIF, ANDREW BAUM, SUMMARY JUDGMENT GEORGE ALOI, CHRISTINE BECK, BONNIE TILLER, MORTIMOR C. LAZARUS, JANE WARREN, JOHN C. WOELL and BARBARA EISENBERG, Defendants. Seana nneenennerenennenennnennenaauenenneoeneenen==" --X STATE OF NEW YORK ) SS, COUNTY OF NEW YORK ; IIELEN SILLER, being duly sworn, deposes and says: I [am the plaintiff in this action and submit this affidavit in support of my motion for partial summary judgment on the first cause of action of my complaint. By that cause of action, | seck declaratory and injunctive relief concerning the breach by defendant The Third Brevoort Corporation (“Brevoort”) of its contractual obligations to me by refusing to permit me to replace with comparable equipment a clothes washer and clothes dryer that were installed in 1991 with the Brevoort's approval as part of my apartment combination and associated renovations that | made pursuant to the alteration agreement the Brevoort and my husband and T signed in 1990. Because of the Brevoort’s refusal to abide its obligations le me, I currently am without a functioning clothes washer. Because my washer and dryer are in a stacked unit with shared controls, | cannoi replace my washer without also replacing my dryer. A photograph of any washer and dryer is attached as Exhibit A. 2 As set forth in my verified complaint, a copy of which is annexed hereto as Exhibit B, | am a tenant-sharehoider of apartments 12R and 12T in the cooperatively-owned building located at 11 Fifth Avenue, New York, New York, of which the Brevoort is the owner. Issue was joined on March !0, 2014 on the filing by the Brevoort of its verified answer, a copy of which is annexed hereto as Exhibit C. 33 My occupancy of apartments 12R and 127 is subject to the terms of a proprietary lease, a copy of which is annexed hereto as Exhibit D. 4 Commencing in 1990, | combined apartments 12R and 121 into a single residence pursuant {o an alteration agreement made with the Brevoort. A copy of the alteration agreement is anncxed hereto as ExhibitE. In connection with the combination of the apartments, one kitchen was converted into a laundry and exercise room and a washing machine and gas clothes dryer were installed together with surrounding cabinetry. Complaint 437. 5. In late January 2014, it became necessary to replace the 23 year old washing machine which could no longer be repaired. Complaint [41. Because the machine is “stacked” with the clothes dryer on top and both units share a single control panel, both machines must be replaced. 6 On January 29, 2014, my husband, Stephen I. Siller (“Stephen”), contacted the Brevoort’s managing agent, Brenda Ballison of Douglas Elliman, for guidance respecting obtaining approval for replacement of these appliances. Complaint [42. The replacement of such machines purportedly requires the Brevoort’s prior written approval in accordance with Rule 4 of the house rules. A copy of the complete house rules, amended and restated as of April 1, 2012, is annexed hereto as Exhibit F. iy Ms. Ballison responded with a request for specifications concerning the proposed new machines. Specifications were needed because the machines will be stacked and fitted within the cxisting space of the old units, utilizing the same connections for gas, electric, water and exhaust. The three brands listed in Rule 4 oi’ the house rules as already having the Brevoort’s prior approval do not offer comparable equipment. Additionally, Rule 4 of the house rules purports to require a self-venting electric clothes dryer while the machine being replaced is a gas clothes dryer thal exhausts outside through an adjacent vent located on my terrace. 8 Stephen provided the specifications on January 31, 2014 by email. The machines proposed are made by Frigidaire. The washer, like the units already approved by the Brevoort, is a modern front loading, low sudsing machine that uses less water and has an Energy Star rating. ‘The dryer, which uses the existing gas service instead of electricity, is far more efficient than the electric self-venting units specified in Rule 4 of the house rules. 9. Upon receipt of the specifications, Ms. Ballison responded by email: “Thanks will forward on to see if there is anything else we will nced for approvals.” On February 3, 2014, Stephen followed up with Ms. Ballison explaining that it had now been confirmed that the clothes washer could not be repaired. At 3:16 p.m., Ms. Ballison responded that she hoped to have an answer the next day. Less than an hour later, however, she responded; “Phe Board will not permit the washer/dryer you are proposing.” The explanation provided was that the Brevoort would only approve and was insisting upon a self-venting electric clothes dryer. 10. Copies of the chain of communications concerning the request fur replacement of the washing machine and clothes dryer are annexed collectively hereto as Exhibit G. LL. Subsequent efforts to resolve the issue were unsuccessful. The Brevoort continues to adhere to its arbitrary determination that the propused clothes dryer could not be installed cven though it would utilize existing hookups and would be more efficient than an electric self-venting unit. Likewise, the Brevoori refused to approve the Frigidaire washer even though its perfurmance is equivalent or superior to the units bearing the brands identified in Rule 4 of the house rules. Especially troubling was the Brevoort’s disregard for the existing alteration agreement pursuant to which it had consented years ago to the installation of the stacked washer/ dryer and related buildout, tn breach of that alteration agreement, and without any rational basis, the Brevoort insists that we abandon these improvements and make alterations that 1 neither want nor need solely to accommodate less efficient appliances. 12. Pursuant lo paragraph Nineteenth of the proprictary lease, I, as the lessee, am responsible for maintaining the washing machine and clothes dryer in my apartment. ‘Yo that end, I entered into the alteration agreement in May 1990 that enabled me to make alterations to my apartment, including the installation of the laundry, That included the stacked washer/dryer units, including the gas dryer that vents outside. 13. Tn response to my motion for a preliminary injunction, which the court denied for lack of irreparable harm, the Brevoort’s president, Diane C, Nardone, postulated two reasons for the current house rule concerning washers and dryers. She maintained that low sudsing washing machines were required on account of the building's older pipes, and that self-venting dryers would “cxist in harmony with a 1955 building by not penetrating and compromising our brick facade.” Neither of these reasons, however, provides a basis for the Brevoort’s refusal to abide the agreement that it made with me when | installed the laundry room. In the first instance, the proposed washing machine will make no more soap suds than the models the Brevoort has approved. See Aff. of Stephen Ross, sworn to March 8, 2014, at 41 1(a) (annexed hereto as Exhibit) (“The nature and quantity of the laundry detergent, net the brand of washing machine, determines the amount of suds. Accordingly. as far as sudsing goes, the brand plaintiff proposes to purchase is as efficient in its sudsing attribute as defendant's three brands.”). {n the second instanec, the vent for the dryer already exists and has existed in harmony with the bricks for more than 23 years, thus rendering a less efficient sclf-venting electric dryer superfluous. 14, Moreover, house Rule 4, on which the Brevoort relies, expressly makes provision —as it must — for exceptions to the rule. ‘The rule provides: “Except as otherwise permitted in the Alterations Agreement ....” In my case, the Brevoort's then Board of Directors, upon submission of complete plans, made “the final decision whether the alterations proposed to be made may in fact be made.” Alteration Agreement at 1 (Exhibit D hereto). Having approved my plans, there is no basis now for the breach of that agreement, particularly where the house rule recognizes that exceptions have been and can be made. 15. Finally, it is important to note that the Brevoort is incorrect to the extent that il has asserted that the adoption and implementation of house rules is substantially protected from Judicial scrutiny by the business judgment rule. ‘The proprietary lease expressly requires that house rules promulgated by the Brevuort’s board of directors be both “reasonable” and “necessary for the operation and control of the building.” Here, on its face, house Rule 4 arbitrarily limits shareholders to three brands (as opposed to recommending them) and requires: self-venting electric dryers even where there already exists a machine veuting (o the outside. Tlowever, the issues of reasonableness and what is necessary for the operation and contro! of the building need not be reached on this motion because of the exception to which I am entitled under the existing alteration agreement between the Brevourt and me, 16. In conclusion, under the applicable agreements, I am entitled to replace my 23 year old washing machine and gas clothes dryer with a new set of stacked machines to fit the same space and utilize the same hookups, including the exhaust vent. There are no material issues of fact that require a delay in granting me this relief. WHEREFORE, plaintiff's motion for partial summary judgment on the first cause of action should be granted in its entirety together with such other and further relief as the Court may deem just and proper. Modo deh ns Helen Siler Sworn to before me this ™ day of May, 2014 Keen Steen Notary Public mea Fen ie Ne Yr ae ee County 2018