Preview
INDEX NO. 151313/2014
FILED: NEW YORK COUNTY CLERK 10/22/2014 05:24 PM
NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 10/23/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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HELEN SILLER,
Plaintiff,
-against- Index No. 151313/2014
THE THIRD BREVOORT CORPORATION,
DIANE C. NARDONE, CLIFF RUSSO, SECOND AMENDED
ELIZABETH LOUIE, ANDREW BAUM, VERIFIED COMPLAINT
GEORGE ALOI, CHRISTINE BECK, BONNIE
HILLER, MORTIMOR C. LAZARUS, JANE
WARREN, JOHN C. WOELL and
BARBARA EISENBERG,
Defendants.
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Plaintiff, Helen Siller (“Helen”), by her attorneys, Stephen I. Siller and The Law Offices
of Sheldon Eisenberger, for her Second Amended Verified Complaint alleges as follows:
Introduction
1 This is an action by Helen to have declared and enforced her rights respecting the
use of her home. She is the tenant-shareholder of apartment 12R/T in the building located at 11
Fifth Avenue, New York, New York. The building is owned by defendant The Third Brevoort
Corporation (the “Brevoort”). In or about 1990-1991, Helen, together with her husband, Stephen
I, Siller, renovated and combined the two apartments into a single residence. The renovation
included the installation of a laundry room within the residence. All of the work was submitted
to and approved by the Brevoort; there never has been an issue respecting that work.
2 In or about January 2014, the washing machine installed in 1991 broke, could not
be repaired, and required replacement together with the attached dryer. What should have been a
simple matter of replacing the equipment with new modern appliances, inexplicably turned into a
confrontational dispute when the Brevoort’s president, defendant Diane C. Nardone
(“Nardone”), blocked the Sillers from replacing the machines with comparable equipment and
insisted on different machines that would require a substantial alteration of the laundry room.
3 The Brevoort clearly has no basis in law or fact to prevent the Sillers from
replacing the machines pursuant to the terms of the proprietary lease. A house rule adopted in
2010 specifying only three foreign brands that do not offer equipment comparable to that which
is required for the Sillers’ laundry is arbitrary, unreasonable, and in conflict with the terms of the
applicable provisions of the proprietary lease and alteration agreement that define the respective
rights of the parties. Other manufacturers offer appliances that are at least as, if not more,
efficient than the brands specified by the Brevoort’s house rules, and they offer appliances that
are a ready replacement for the Sillers’ machines and which require no alterations to the laundry
room. Under the circumstances, the position taken by the Brevoort, as dictated by Nardone, is
bizarre.
4 Investigation into the underlying circumstances uncovered troubling evidence of
an improper relationship between Nardone and Douglas Lane (“Lane”), an engineer engaged
regularly and continuously since 1995 by the Brevoort. An application made under the Freedom
of Information Law to the District Attorney for New York County yielded evidence that Nardone
came to the defense of Lane when he was indicted for fraud in the rigging of construction
contracts, including a contract concerning the Brevoort. Unbeknownst to the Brevoort’s board of
directors and shareholders, Nardone, as president of the Brevoort, sent letters to the judge
responsible for Lane’s sentencing proclaiming Lane’s innocence. Allen F, Sullivan, Esq., the
Assistant District Attorney handling the matter, obviously was troubled by what Nardone wrote
and responded that her conduct was “unfortunate.” “There [wa]s no question of [Lane’s] guilt”:
As with the charges relating to your building, count twelve was
fully supported by recordings of telephone conversations that were
intercepted by court ordered wiretaps and by extensive
documentary evidence. [Lane’s] complicity and culpability were
inescapable.
Nardone evidently concealed from the board and shareholders her communications concerning
Lane, as well as his guilty plea and license suspension.
5 The benefit that Nardone derives by “creating” work for Lane is the only
plausible explanation for insisting on a costly alteration of the laundry rather than a simple
replacement of worn-out machines. Upon information and belief, the decision to deny
replacement of the machines was made by Nardone, independently of the Brevoort’s board of
directors, thereby preventing them from exercising their independent business judgment.
Making matters worse, notwithstanding the pendency of this lawsuit, the members of the board
have failed in their obligation to inform themselves by undertaking an independent investigation
of this matter. The controlling contractual obligations are clear, and there certainly is no
palpable reason for the Brevoort not to honor its contractual obligations in this instance; yet no
corrective measures have been taken by the board to render this action unnecessary.
Parties
6 Plaintiff Helen is the owner of unit 12R/T in the building known as and located at
11 Fifth Avenue, New York, New York. She is a tenant/shareholder of the Brevoort and resides
in the apartment with her husband, Stephen I. Siller.
7 Upon information and belief, defendant the Brevoort is a cooperative apartment
corporation organized and existing under the laws of the state of New York. It is the owner of
real property, including the building constructed thereon, known as and located at 11 Fifth
Avenue, New York, New York, Block 566, Lot 1.
8 Upon information and belief, defendant Nardone is the president of the Brevoort,
a position that she has held continuously for at least 22 years. Additionally, Nardone is an
attorney admitted to practice before the courts of this state.
9 Defendants Cliff Russo, Elizabeth Louie, Andrew Baum, George Aloi, Christine
Beck, Bonnie Hiller, Mortimor C. Lazarus, Jane Warren, John C. Woell and Barbara Eisenberg
are members of the board of directors of the Brevoort and were named as defendants to
derivative claims pled in the First Amended Complaint. This Second Amended Complaint no
longer includes those derivative claims.
Facts Common to all Claims
10. Helen and her husband became tenant/shareholders of the Brevoort in or about
1980. In or about 1990-1991, they bought and combined a second apartment with their first. As
part of the combination, they installed a laundry. The combined apartment, including all
improvements therein, was completed pursuant to an alteration agreement with complete
architectural drawings and specifications approved by the Brevoort.
11. The Sillers’ laundry includes built-in cabinetry and a stacked washer and dryer.
The washer and dryer are 115 volt machines and the dryer operates with natural gas and exhausts
through a vent onto the Sillers’ adjacent terrace.
12. At the time of their installation, the laundry equipment, including all connections
and the exhaust vent, were approved by the Brevoort.
13. In or about 2001, Helen became the sole owner of the combined apartment.
14, Helen at all relevant times was and is in full compliance with her obligations
under the proprietary lease and alteration agreement.
15. In or about January 2014, the Sillers’ 23 year old washing machine broke and it
became clear that further repairs were impractical. Because the washer is stacked with the
clothes dryer and connected via a single control panel, replacement of both the washer and dryer
was required.
16. The Sillers contacted Brenda Ballison, the Brevoort’s managing agent, to make
the arrangements necessary to replace the machines. Notwithstanding that Helen sought only to
replace existing equipment, Ms. Ballison informed the Sillers that the machines could not be
replaced. Instead, they would have to undertake a substantial alteration of the laundry to
accommodate foreign made machines, mandated by the Brevoort, with different dimensions and
specifications that are incompatible with the design of the Sillers’ laundry room.
17. The scope of the alterations required by the Brevoort include (a) replacement of
the gas dryer with a less efficient self-venting electric unit; (b) replacement of the 115 volt
equipment with 220 volt machines; (c) installation of 220 volt wiring and breakers; (d) removal
and replacement of laundry room cabinetry and counters to accommodate the Brevoort-specified
appliances; (e) bricking up the existing dryer exhaust vent; and (f) purchasing and installing
foreign-brand appliances that are no more energy or water efficient than equipment offered by
domestic manufacturers.
The Proprietary Lease and Alteration Agreement
18. The Brevoort, as lessor, and Helen, as lessee, are parties to a proprietary lease
dated as of April 18, 2001. The term of the lease expires September 30, 2075.
19. Paragraph 8 of the proprietary 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)
Helen has direct access to her terrace which is set-back from the street. The dryer exhaust vent is
not visible from the street, is water proof, and extends only inches into Helen’s terrace over
which she has “exclusive use.”
20. Paragraph 6 of the proprietary lease provides that its provisions only may be
altered by approval of at least two-thirds of the Brevoort’s shareholders and the affected
shareholder. The board of directors has no authority to alter the terms of the proprietary lease,
whether by resolution or by adopting contrary house rules.
21. Pursuant to paragraph 30 of the proprietary lease, “any structural alteration” can
be made to “on any roof, terrace or balcony appurtenant [to an apartment]” with the Brevoort’s
written consent. To the extent that the exhaust vent onto Helen’s terrace was a structural
alteration, it was made with the Brevoort’s written consent.
22. Paragraph 19 of the proprietary 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
Jixtures 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)
Hence, under the lease, the responsibility for replacing the laundry machines is assigned to the
lessee, Helen.
23. Regarding house rules, paragraph 16 of the proprietary 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 such rules.” (Emphasis added) The reference to “reasonable” and
“necessary” house rules represents a significant constraint on the adoption of house rules and
renders them subject to judicial review respecting their reasonableness and necessity.
24. On or about June 25, 1990, the Sillers and the Brevoort entered into an alteration
agreement pursuant to which the Sillers combined their two apartments and installed the laundry.
That alteration agreement expressly provides in paragraph 10 that it does not abrogate or alter the
terms of the proprietary lease: “Any approval by [the Brevoort] of any work to be done by the
Cooperator [Helen] will not be considered a waiver of any of the terms of the Proprietary Lease
including the House Rules.”
The House Rules and Alteration Agreements
25. In 1990, when the Sillers combined the apartments and installed the laundry,
paragraph 3.3 of the Brevoort’s 1985 House Rules provided as follows:
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.
The Sillers’ equipment was installed with the Brevoort’s written approval.
26. In or about 2010, the Brevoort implemented a new set of house rules. In relevant
part, the rules include:
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.
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.
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)
27. Together with the new house rules, the Brevoort adopted a new alteration
agreement. Paragraph 10(h)(3) of that agreement provides:
The Corporation [Brevoort], in its sole discretion, has the absolute
and unfettered right to require the Shareholder to remove and/or to
replace, at the Shareholder’s sole expense, any and all installations
and alterations made by the Shareholder, including, but not limited
to, windows, terrace doors, built-ins, cabinetry, window air
conditioners, through-the-wall air conditioners, washing machines
and dryers, ventilators, and floor and wall coverings.
In contrast, paragraph 8 of the alteration agreement that the Brevoort made with the Sillers in
1990 provides the opposite:
The Cooperator shall assume all responsibility for the Alterations
[and] . . all responsibility for the weather-tightness of any
installation affecting exterior walls or roofs 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. . . plumbing, air conditioning and other
equipment installed, or altered, by the Cooperator, during the
balance of their lease term. (Emphasis added)
The provision of the new alteration agreement, which Helen never has signed, is a material
departure from the earlier agreement and, moreover, is at odds with paragraphs 6 and 20 of the
proprietary lease.
28. To the extent that house rules, including the new alteration agreement, are in
conflict with the provisions of the proprietary lease, they are void and unenforceable.
29. To the extent that house rules, including the new alteration agreement, are
unreasonable or unnecessary for the management and control of the building, they are void and
unenforceable.
FIRST CAUSE OF ACTION
Declaratory and Injunctive Relief — Against the Brevoort and Nardone
30. Helen repeats and realleges each of the foregoing allegation with the same force
and effect as if set forth at length herein.
31. Pursuant to terms of the proprietary lease and alteration agreement to which the
Brevoort and Helen are parties, Helen is entitled to replace the clothes washer and dryer
previously approved by the Brevoort.
32. The Brevoort’s refusal to permit Helen to replace the washer and dryer with
comparable equipment is without basis in law or fact.
33. For apparent personal gain, Nardone has wrongfully interfered with Helen’s
contractual rights by causing the Brevoort to insist on an alteration of Helen’s apartment for the
purpose of generating engineering and contractor fees.
34, The damages sustained by Helen as a result of the breach by the Brevoort of its
contractual obligations are ongoing and irreparable.
35. Helen has no adequate remedy at law.
SECOND CAUSE OF ACTION
Declaratory and Injunctive Relief Pursuant to RPAPL § 1515 — Against the Brevoort
36. Helen repeats and realleges each of the foregoing allegation with the same force
and effect as if set forth at length herein.
sig Pursuant to Real Property Actions and Proceedings Law Article 15, Helen seeks
to have determined a claim to real property. Helen’s estate or interest in the Brevoort real
property is for a term of years presently expiring in 2075.
38. At all times relevant to this action the Brevoort has owned the subject real estate
in fee simple, leased apartment units to its shareholders, including Helen, pursuant to proprietary
leases, and owned, operated, managed, and controlled, directed or supervised the management of
its real estate.
39, Venue is proper in this Court because all parties are citizens or residents or have
their principal place of business, and the Brevoort owns real estate, in New York County. Upon
information and belief, none of the defendants is an infant, mentally retarded, mentally ill or an
alcohol abuser.
40. A judgment in this action will not affect 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 be entitled to such estate or interest if such event
had happened immediately before the commencement of this action is named as a party.
41. Neither the Brevoort’s nor Nardone’s mortgagee(s) nor any other shareholder’s
mortgagee(s) is a necessary party at this time. One or more other Brevoort shareholders might
be affected by a judgment in this action if they (a) are parties to an “alteration agreement” with
the Brevoort or (b) have Brevoort approvals involving brick penetrations. Helen believes the
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People of the State of New York, represented by the Attorney General (“AG”), are not necessary
parties notwithstanding that the AG has regulatory oversight of cooperative housing corporations
in the State of New York, such as the Brevoort, which filed its Offering Statement dated
September 10, 1968 with the AG.
42. Helen demands a judgment, pursuant to RPAPL §1515, (a) declaring her rights
respecting the use and occupation of the apartment, (b) barring defendants, and every person
claiming under any of them, from interfering with her interest in the apartment, including but not
limited to, her continued use of the existing dryer vent and replacement of the laundry machines.
43. The laundry room in the apartment, including the machines and dryer exhaust
vent, has existed in the Brevoort real estate for more than 10 years, been open and notorious and
a property right vested in Helen since at least 1992 under a claim of right under the proprietary
lease and alteration agreement, and is an interest in real property exclusive to Helen.
44, Helen has acquired (a) an easement for the dryer vent that burdens the Brevoort
real property and/or (b) adverse possession of the dryer vent in the Brevoort real property.
45. Pursuant to CPLR 3001, there is a justiciable controversy between the parties
concerning whether replacing the washer and dryer would constitute a violation of house rules by
Helen or a breach of contract by the Brevoort.
46. Helen is entitled to a judgment under RPAPL §1515, or otherwise, declaring that:
(a) no new alteration agreement and no further approval from the Brevoort is required for Helen
to replace her laundry machines with new Energy Star appliances and utilizing the existing hook
ups and dryer vent; (b) house rules 4, 77 and 100, and the corresponding provisions in the new
alteration agreement (including paragraph 10(h)(3) thereof), are null and void to the extent they
(i) should have been but were not filed with the Attorney General for his approval as an
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amendment to the Brevoort’s Offering Plan, (ii) are being applied to Helen regarding the washer
and dryer, (iii) are inconsistent and conflict with paragraphs 6, 16, 19 and 20 of the proprietary
lease, (iv) are not “reasonable,” and (v) are not and have not been found by the Brevoort’s board
of directors to be “necessary for the operation and control of the building”; and (c) the Brevoort
and every person claiming under or in the right of the Brevoort be barred from any and all claims
to an estate or interest in the existing dryer vent because Helen has adverse possession thereof or
an easement therefor.
47. Helen has no adequate remedy at law and would suffer irreparable harm absent a
judicial declaration of her rights.
THIRD CAUSE OF ACTION
Prima Facie Tort — Against Nardone
48. Helen repeats and realleges each of the foregoing allegations with the same force
and effect as if set forth at length herein.
49. Upon information and belief, Nardone repeatedly has used her authority as
president of the Brevoort to compel Helen to perform and complete unnecessary alterations and
repairs to her apartment.
50. Nardone’s conduct in compelling the work was undertaken for self-dealing and
ulterior purposes and not for the benefit of the Brevoort. Her actions were without excuse or
justification.
51. Nardone’s wrongful acts caused damage to Helen who was and will be compelled
to pay for unnecessary work to her apartment and, ultimately, to prosecute this action to enforce
her rights under the proprietary lease and alteration agreement.
52. Nardone’s tortious conduct has continued in her defense of this action. Upon
information and belief, the affidavit that Nardone filed in opposition to Helen’s initial motion for
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injunctive relief to permit her to proceed with the replacement of her laundry machines (as
opposed to a costly alteration) was intentionally false and misleading in at least the following
respects:
a. Nardone represented in her sworn statement to the Court that the
Brevoort’s house rules adopted in 2010 and accompanying alteration agreement require Helen to
install three so-called failsafe devices when, in fact, the documents do not speak of such devices.
Nardone Aff. 4917-18.
b Nardone sought to create a false issue for the Court by swearing that the
three “recommended [washing machine] brands are low sudsing machines,” even though it is the
detergent that determines the amount of suds, not the brand. Nardone Aff. 15. Moreover,
neither the 2010 house rules nor their application to Helen provides any basis for Nardone’s
characterization of the brands as “recommended.”
Cc. Nardone sought to mislead the Court by maintaining that the existing vent
must be removed to allow clothes dryers “to exist in harmony with a 1955 building by not
penetrating and compromising our brick fagade.” Nardone Aff. 17. The statement was a
fabrication because: (i) The vent was approved by the Brevoort, and Nardone is without
authority to abrogate Helen’s contractual rights respecting a vent that has existed in harmony
with the 1955 building for more than twenty years; (ii) The existing vent is not a proposed new
penetration that would penetrate or compromise “our brick facade”; (iii) Notwithstanding
Nardone’s purported concern for building penetrations, the new house rules adopted in 2010
actually mandate an increasing number of brick penetrations by requiring that window air
conditioners be replaced only with through-the-bricks units; (iv) More than 4,176 penetrations of
Brevoort building’s fagade exist and that number is increasing; and (v) The Brevoort regularly
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cuts new scupper holes about the same size as the dryer vent, which scupper holes are visible
from the street, in the bricks on terraces.
53. Nardone’s conduct constitutes a prima facie tort, which conduct was done
recklessly, in bad faith, intentional, targeted at Helen, inappropriate, unreasonable, arbitrary,
capricious, malicious and vindictive, a breach of Nardone’s fiduciary duties to, and duty to act in
good faith with, and duty of care to, Helen.
54, Nardone’s actions, including but not limited to her failure to correct or withdraw
her false affidavit filed with this Court, are sufficiently reckless and intentional and in excess of
her authority so as to require her to pay actual damages to Helen in an amount to be determined
at trial but which is believed to be not less than $75,000, and punitive damages in an amount not
less than $2,000,000.
FOURTH CAUSE OF ACTION
Tortious Interference with Contract — Against Nardone
55. Helen repeats and realleges each of the foregoing allegations with the same force
and effect as if set forth at length herein.
56. At all times relevant, the proprietary lease and alteration agreements were valid
and binding contracts between Helen and the Brevoort.
57. At all times relevant, Nardone knew of the contracts between Helen and the
Brevoort.
58. Nardone intentionally interfered with the Brevoort’s contractual obligations owed
to Helen by preventing the replacement of Helen’s laundry machines.
59. Nardone’s intentional interference with the contractual obligations was without
justification in that it was undertaken to compel Helen to proceed with a substantial and costly
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alteration that would benefit Nardone personally through her special relationship with Lane, the
Brevoort’s engineer.
60. Nardone’s actions in interfering with Helen’s contractual rights were not taken on
behalf of the Brevoort and she did not act within the scope of her authority.
61. By virtue of Nardone’s actions in blocking the replacement of Helen’s laundry
machines for the purpose of compelling a costly alteration of her laundry, Nardone is liable for
actual damages in an amount to be determined at trial but which is believed to be not less than
$75,000, and punitive damages in an amount not less than $2,000,000.
FIFTH CAUSE OF ACTION
Attorneys’ Fees Pursuant to R.P.L. § 234 — Against the Brevoort
62. Helen repeats and realleges each of the foregoing allegations with the same force
and effect as if set forth at length herein.
63. Paragraph 27 of the proprietary lease provides for the recovery by the Brevoort of
attorneys’ fees and expenses. Pursuant to section 234 of the Real Property Law, the provision
for attorneys’ fees and expenses is deemed by law to be reciprocal.
64. By virtue of the foregoing, Helen is entitled to a judgment for her reasonable
attorneys’ fees and expenses.
SIXTH CAUSE OF ACTION
Contract Damages — Against the Brevoort
65. Helen repeats and realleges each of the foregoing allegations with the same force
and effect as if set forth at length herein.
66. The Brevoort breached the proprietary lease and alteration agreement by
preventing Helen from replacing her clothes washer and gas dryer.
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67. By virtue of the Brevoort’s failure to honor and breach of the contracts, Helen has
been without a properly functioning laundry in her apartment.
68. By virtue of the Brevoort’s failure to honor and breach of the contracts, Helen
will sustain damages to (a) to alter the laundry to accommodate new appliances wrongfully
mandated by the Brevoort or (b) remove the laundry and restore it to usable alternative space.
69. By virtue of the Brevoort’s failure to honor and breach of the contracts, Helen has
sustained a loss in the market value of her apartment.
70. By virtue of the foregoing, Helen is entitled to a judgment for damages in an
amount to be determined at trial but which is believed to be in excess of $300,000.
SEVENTH CAUSE OF ACTION
Treble Damages under Judiciary Law § 487 — Against Nardone
71. Helen repeats and realleges each of the foregoing allegations with the same force
and effect as if set forth at length herein.
72. Judiciary Law section 487 provides:
An attorney or counselor who: 1. Is guilty of any deceit or
collusion, or consents to any deceit or collusion, with intent to
deceive the court or any party; or, 2. Willfully delays his client's
suit with a view to his own gain; or, willfully receives any money
or allowance for or on account of any money which he has not laid
out, or becomes answerable for, is guilty of a misdemeanor, and in
addition to the punishment prescribed therefor by the penal law, he
forfeits to the party injured treble damages, to be recovered in a
civil action.
73. Upon information and belief, Nardone violated the Judiciary Law by not
correcting the false and misleading statements in her affidavit previously submitted to this Court.
74. By virtue of the foregoing, Helen is entitled to a judgment against Nardone for her
damages proximately cause by the filing of the false affidavit which, pursuant to section 487 of
the Judiciary Law, are to be trebled.
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EIGHTH CAUSE OF ACTION
Property Damage — Against the Brevoort
75. Helen repeats and realleges each of the foregoing allegations with the same force
and effect as if set forth at length herein.
76. In or about 2013, the living room air conditioner in the Sillers’ apartment was
damaged by the negligence of contractors engaged by the Brevoort to perform work at the
Building and the negligence of the Brevoort in failing adequately and properly to supervise the
work.
71. As a result of the actions of the Brevoort and its contractors, Helen was compelled
to replace the air conditioner in or about June 6, 2013 at a cost to her of $1,740.91.
78. By virtue of the foregoing, Helen is entitled to a judgment against the Brevoort
for $1,740.91 plus legal interest thereon from June 6, 2013.
WHEREFORE, Helen demands judgment as follows:
A On the first and second causes of action, a declaratory judgment and permanent
injunction, or other appropriate relief, against the Brevoort and Nardone:
B On the third and fourth causes of action, actual damages of not less than $75,000
and punitive damages of not less than $2,000,000 against Nardone;
Cc. On the fifth cause of action, a money judgment against the Brevoort for Helen’s
reasonable attorney’s fees and expenses;
D On the sixth cause of action, damages of not less than $300,000 against the
Brevoort;
E On the seventh cause of action, treble the damages against Nardone for her filing
of a false affidavit;
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F On the eighth cause of action, damages of $1,740.91, plus interest at the legal rate
from June 6, 2013, against the Brevoort for property damage; and
G Such other and further relief as this Court deems just and proper.
Dated: New York, New York
October 21, 2014
THE LAW OFFICES OF
SHELDON EISENBERGER
By
Daniel S. inbel Counsel
30 Broad Street, 27th Floor
New York, NY 10004
(212) 422-3843
STEPHEN I. SILLER, ESQ.
885 Third Avenue, 16th Floor
New York, NY 10022
(212) 981-2330
Attorneys for Plaintiff Helen Siller
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VERIFICATION
Helen Siller, being duly sworn, deposes and says:
1 1 am the plaintiff in the above-entitled action. 1 am over 21 years of age.
2, I have read the foregoing Second Amended Verified Complaint and know the contents
thereof.
The contents of the Second Amended Verified Complaint are true to my knowledge,
except as to matters therein stated to be alleged on information and belief and as to those
matiers I believe them to be true.
To the best of my knowledge, information and belief, formed after an inquiry reasonable
under the circumstances, the presentation of these papers or the contentions therein are
not frivolous as detined in Subsection (c) of Section 130-1.1 of the Rules of the Chief
Administrative Judge (22 NYCRR).
—
Helen Siller, Plaintiff
Sworn to before me this 2 Py of October, 2014.
[NOTARY PUBLIC SEAL]
o~\ he Coy F Uo \or.
GREGORY SHTYAKALO
Netary Public - State of New York
NO. 01SH6283075
Qualified in Kings Count;
My Commission Expires May 28, 2017
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INDEX NO. 151313/2014 FILED: NEW YORK COUNTY CLERK 10/22/2014 05:24 PM NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 10/23/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK = sae HELEN SILLER, Plaintiff, -against- Index No. 151313/2014 THE THIRD BREVOORT CORPORATION, DIANE C. NARDONE, CLIFF RUSSO, SECOND AMENDED ELIZABETH LOUIE, ANDREW BAUM, VERIFIED COMPLAINT GEORGE ALOI, CHRISTINE BECK, BONNIE HILLER, MORTIMOR C. LAZARUS, JANE WARREN, JOHN C. WOELL and BARBARA EISENBERG, Defendants. SccmSTcbECTuBEEoUEEEECCETESISE Plaintiff, Helen Siller (“Helen”), by her attorneys, Stephen I. Siller and The Law Offices of Sheldon Eisenberger, for her Second Amended Verified Complaint alleges as follows: Introduction 1 This is an action by Helen to have declared and enforced her rights respecting the use of her home. She is the tenant-shareholder of apartment 12R/T in the building located at 11 Fifth Avenue, New York, New York. The building is owned by defendant The Third Brevoort Corporation (the “Brevoort”). In or about 1990-1991, Helen, together with her husband, Stephen I, Siller, renovated and combined the two apartments into a single residence. The renovation included the installation of a laundry room within the residence. All of the work was submitted to and approved by the Brevoort; there never has been an issue respecting that work. 2 In or about January 2014, the washing machine installed in 1991 broke, could not be repaired, and required replacement together with the attached dryer. What should have been a simple matter of replacing the equipment with new modern appliances, inexplicably turned into a confrontational dispute when the Brevoort’s president, defendant Diane C. Nardone (“Nardone”), blocked the Sillers from replacing the machines with comparable equipment and insisted on different machines that would require a substantial alteration of the laundry room. 3 The Brevoort clearly has no basis in law or fact to prevent the Sillers from replacing the machines pursuant to the terms of the proprietary lease. A house rule adopted in 2010 specifying only three foreign brands that do not offer equipment comparable to that which is required for the Sillers’ laundry is arbitrary, unreasonable, and in conflict with the terms of the applicable provisions of the proprietary lease and alteration agreement that define the respective rights of the parties. Other manufacturers offer appliances that are at least as, if not more, efficient than the brands specified by the Brevoort’s house rules, and they offer appliances that are a ready replacement for the Sillers’ machines and which require no alterations to the laundry room. Under the circumstances, the position taken by the Brevoort, as dictated by Nardone, is bizarre. 4 Investigation into the underlying circumstances uncovered troubling evidence of an improper relationship between Nardone and Douglas Lane (“Lane”), an engineer engaged regularly and continuously since 1995 by the Brevoort. An application made under the Freedom of Information Law to the District Attorney for New York County yielded evidence that Nardone came to the defense of Lane when he was indicted for fraud in the rigging of construction contracts, including a contract concerning the Brevoort. Unbeknownst to the Brevoort’s board of directors and shareholders, Nardone, as president of the Brevoort, sent letters to the judge responsible for Lane’s sentencing proclaiming Lane’s innocence. Allen F, Sullivan, Esq., the Assistant District Attorney handling the matter, obviously was troubled by what Nardone wrote and responded that her conduct was “unfortunate.” “There [wa]s no question of [Lane’s] guilt”: As with the charges relating to your building, count twelve was fully supported by recordings of telephone conversations that were intercepted by court ordered wiretaps and by extensive documentary evidence. [Lane’s] complicity and culpability were inescapable. Nardone evidently concealed from the board and shareholders her communications concerning Lane, as well as his guilty plea and license suspension. 5 The benefit that Nardone derives by “creating” work for Lane is the only plausible explanation for insisting on a costly alteration of the laundry rather than a simple replacement of worn-out machines. Upon information and belief, the decision to deny replacement of the machines was made by Nardone, independently of the Brevoort’s board of directors, thereby preventing them from exercising their independent business judgment. Making matters worse, notwithstanding the pendency of this lawsuit, the members of the board have failed in their obligation to inform themselves by undertaking an independent investigation of this matter. The controlling contractual obligations are clear, and there certainly is no palpable reason for the Brevoort not to honor its contractual obligations in this instance; yet no corrective measures have been taken by the board to render this action unnecessary. Parties 6 Plaintiff Helen is the owner of unit 12R/T in the building known as and located at 11 Fifth Avenue, New York, New York. She is a tenant/shareholder of the Brevoort and resides in the apartment with her husband, Stephen I. Siller. 7 Upon information and belief, defendant the Brevoort is a cooperative apartment corporation organized and existing under the laws of the state of New York. It is the owner of real property, including the building constructed thereon, known as and located at 11 Fifth Avenue, New York, New York, Block 566, Lot 1. 8 Upon information and belief, defendant Nardone is the president of the Brevoort, a position that she has held continuously for at least 22 years. Additionally, Nardone is an attorney admitted to practice before the courts of this state. 9 Defendants Cliff Russo, Elizabeth Louie, Andrew Baum, George Aloi, Christine Beck, Bonnie Hiller, Mortimor C. Lazarus, Jane Warren, John C. Woell and Barbara Eisenberg are members of the board of directors of the Brevoort and were named as defendants to derivative claims pled in the First Amended Complaint. This Second Amended Complaint no longer includes those derivative claims. Facts Common to all Claims 10. Helen and her husband became tenant/shareholders of the Brevoort in or about 1980. In or about 1990-1991, they bought and combined a second apartment with their first. As part of the combination, they installed a laundry. The combined apartment, including all improvements therein, was completed pursuant to an alteration agreement with complete architectural drawings and specifications approved by the Brevoort. 11. The Sillers’ laundry includes built-in cabinetry and a stacked washer and dryer. The washer and dryer are 115 volt machines and the dryer operates with natural gas and exhausts through a vent onto the Sillers’ adjacent terrace. 12. At the time of their installation, the laundry equipment, including all connections and the exhaust vent, were approved by the Brevoort. 13. In or about 2001, Helen became the sole owner of the combined apartment. 14, Helen at all relevant times was and is in full compliance with her obligations under the proprietary lease and alteration agreement. 15. In or about January 2014, the Sillers’ 23 year old washing machine broke and it became clear that further repairs were impractical. Because the washer is stacked with the clothes dryer and connected via a single control panel, replacement of both the washer and dryer was required. 16. The Sillers contacted Brenda Ballison, the Brevoort’s managing agent, to make the arrangements necessary to replace the machines. Notwithstanding that Helen sought only to replace existing equipment, Ms. Ballison informed the Sillers that the machines could not be replaced. Instead, they would have to undertake a substantial alteration of the laundry to accommodate foreign made machines, mandated by the Brevoort, with different dimensions and specifications that are incompatible with the design of the Sillers’ laundry room. 17. The scope of the alterations required by the Brevoort include (a) replacement of the gas dryer with a less efficient self-venting electric unit; (b) replacement of the 115 volt equipment with 220 volt machines; (c) installation of 220 volt wiring and breakers; (d) removal and replacement of laundry room cabinetry and counters to accommodate the Brevoort-specified appliances; (e) bricking up the existing dryer exhaust vent; and (f) purchasing and installing foreign-brand appliances that are no more energy or water efficient than equipment offered by domestic manufacturers. The Proprietary Lease and Alteration Agreement 18. The Brevoort, as lessor, and Helen, as lessee, are parties to a proprietary lease dated as of April 18, 2001. The term of the lease expires September 30, 2075. 19. Paragraph 8 of the proprietary 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) Helen has direct access to her terrace which is set-back from the street. The dryer exhaust vent is not visible from the street, is water proof, and extends only inches into Helen’s terrace over which she has “exclusive use.” 20. Paragraph 6 of the proprietary lease provides that its provisions only may be altered by approval of at least two-thirds of the Brevoort’s shareholders and the affected shareholder. The board of directors has no authority to alter the terms of the proprietary lease, whether by resolution or by adopting contrary house rules. 21. Pursuant to paragraph 30 of the proprietary lease, “any structural alteration” can be made to “on any roof, terrace or balcony appurtenant [to an apartment]” with the Brevoort’s written consent. To the extent that the exhaust vent onto Helen’s terrace was a structural alteration, it was made with the Brevoort’s written consent. 22. Paragraph 19 of the proprietary 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 Jixtures 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) Hence, under the lease, the responsibility for replacing the laundry machines is assigned to the lessee, Helen. 23. Regarding house rules, paragraph 16 of the proprietary 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 such rules.” (Emphasis added) The reference to “reasonable” and “necessary” house rules represents a significant constraint on the adoption of house rules and renders them subject to judicial review respecting their reasonableness and necessity. 24. On or about June 25, 1990, the Sillers and the Brevoort entered into an alteration agreement pursuant to which the Sillers combined their two apartments and installed the laundry. That alteration agreement expressly provides in paragraph 10 that it does not abrogate or alter the terms of the proprietary lease: “Any approval by [the Brevoort] of any work to be done by the Cooperator [Helen] will not be considered a waiver of any of the terms of the Proprietary Lease including the House Rules.” The House Rules and Alteration Agreements 25. In 1990, when the Sillers combined the apartments and installed the laundry, paragraph 3.3 of the Brevoort’s 1985 House Rules provided as follows: 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. The Sillers’ equipment was installed with the Brevoort’s written approval. 26. In or about 2010, the Brevoort implemented a new set of house rules. In relevant part, the rules include: 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. 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. 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) 27. Together with the new house rules, the Brevoort adopted a new alteration agreement. Paragraph 10(h)(3) of that agreement provides: The Corporation [Brevoort], in its sole discretion, has the absolute and unfettered right to require the Shareholder to remove and/or to replace, at the Shareholder’s sole expense, any and all installations and alterations made by the Shareholder, including, but not limited to, windows, terrace doors, built-ins, cabinetry, window air conditioners, through-the-wall air conditioners, washing machines and dryers, ventilators, and floor and wall coverings. In contrast, paragraph 8 of the alteration agreement that the Brevoort made with the Sillers in 1990 provides the opposite: The Cooperator shall assume all responsibility for the Alterations [and] . . all responsibility for the weather-tightness of any installation affecting exterior walls or roofs 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. . . plumbing, air conditioning and other equipment installed, or altered, by the Cooperator, during the balance of their lease term. (Emphasis added) The provision of the new alteration agreement, which Helen never has signed, is a material departure from the earlier agreement and, moreover, is at odds with paragraphs 6 and 20 of the proprietary lease. 28. To the extent that house rules, including the new alteration agreement, are in conflict with the provisions of the proprietary lease, they are void and unenforceable. 29. To the extent that house rules, including the new alteration agreement, are unreasonable or unnecessary for the management and control of the building, they are void and unenforceable. FIRST CAUSE OF ACTION Declaratory and Injunctive Relief — Against the Brevoort and Nardone 30. Helen repeats and realleges each of the foregoing allegation with the same force and effect as if set forth at length herein. 31. Pursuant to terms of the proprietary lease and alteration agreement to which the Brevoort and Helen are parties, Helen is entitled to replace the clothes washer and dryer previously approved by the Brevoort. 32. The Brevoort’s refusal to permit Helen to replace the washer and dryer with comparable equipment is without basis in law or fact. 33. For apparent personal gain, Nardone has wrongfully interfered with Helen’s contractual rights by causing the Brevoort to insist on an alteration of Helen’s apartment for the purpose of generating engineering and contractor fees. 34, The damages sustained by Helen as a result of the breach by the Brevoort of its contractual obligations are ongoing and irreparable. 35. Helen has no adequate remedy at law. SECOND CAUSE OF ACTION Declaratory and Injunctive Relief Pursuant to RPAPL § 1515 — Against the Brevoort 36. Helen repeats and realleges each of the foregoing allegation with the same force and effect as if set forth at length herein. sig Pursuant to Real Property Actions and Proceedings Law Article 15, Helen seeks to have determined a claim to real property. Helen’s estate or interest in the Brevoort real property is for a term of years presently expiring in 2075. 38. At all times relevant to this action the Brevoort has owned the subject real estate in fee simple, leased apartment units to its shareholders, including Helen, pursuant to proprietary leases, and owned, operated, managed, and controlled, directed or supervised the management of its real estate. 39, Venue is proper in this Court because all parties are citizens or residents or have their principal place of business, and the Brevoort owns real estate, in New York County. Upon information and belief, none of the defendants is an infant, mentally retarded, mentally ill or an alcohol abuser. 40. A judgment in this action will not affect 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 be entitled to such estate or interest if such event had happened immediately before the commencement of this action is named as a party. 41. Neither the Brevoort’s nor Nardone’s mortgagee(s) nor any other shareholder’s mortgagee(s) is a necessary party at this time. One or more other Brevoort shareholders might be affected by a judgment in this action if they (a) are parties to an “alteration agreement” with the Brevoort or (b) have Brevoort approvals involving brick penetrations. Helen believes the 10 People of the State of New York, represented by the Attorney General (“AG”), are not necessary parties notwithstanding that the AG has regulatory oversight of cooperative housing corporations in the State of New York, such as the Brevoort, which filed its Offering Statement dated September 10, 1968 with the AG. 42. Helen demands a judgment, pursuant to RPAPL §1515, (a) declaring her rights respecting the use and occupation of the apartment, (b) barring defendants, and every person claiming under any of them, from interfering with her interest in the apartment, including but not limited to, her continued use of the existing dryer vent and replacement of the laundry machines. 43. The laundry room in the apartment, including the machines and dryer exhaust vent, has existed in the Brevoort real estate for more than 10 years, been open and notorious and a property right vested in Helen since at least 1992 under a claim of right under the proprietary lease and alteration agreement, and is an interest in real property exclusive to Helen. 44, Helen has acquired (a) an easement for the dryer vent that burdens the Brevoort real property and/or (b) adverse possession of the dryer vent in the Brevoort real property. 45. Pursuant to CPLR 3001, there is a justiciable controversy between the parties concerning whether replacing the washer and dryer would constitute a violation of house rules by Helen or a breach of contract by the Brevoort. 46. Helen is entitled to a judgment under RPAPL §1515, or otherwise, declaring that: (a) no new alteration agreement and no further approval from the Brevoort is required for Helen to replace her laundry machines with new Energy Star appliances and utilizing the existing hook ups and dryer vent; (b) house rules 4, 77 and 100, and the corresponding provisions in the new alteration agreement (including paragraph 10(h)(3) thereof), are null and void to the extent they (i) should have been but were not filed with the Attorney General for his approval as an 1 amendment to the Brevoort’s Offering Plan, (ii) are being applied to Helen regarding the washer and dryer, (iii) are inconsistent and conflict with paragraphs 6, 16, 19 and 20 of the proprietary lease, (iv) are not “reasonable,” and (v) are not and have not been found by the Brevoort’s board of directors to be “necessary for the operation and control of the building”; and (c) the Brevoort and every person claiming under or in the right of the Brevoort be barred from any and all claims to an estate or interest in the existing dryer vent because Helen has adverse possession thereof or an easement therefor. 47. Helen has no adequate remedy at law and would suffer irreparable harm absent a judicial declaration of her rights. THIRD CAUSE OF ACTION Prima Facie Tort — Against Nardone 48. Helen repeats and realleges each of the foregoing allegations with the same force and effect as if set forth at length herein. 49. Upon information and belief, Nardone repeatedly has used her authority as president of the Brevoort to compel Helen to perform and complete unnecessary alterations and repairs to her apartment. 50. Nardone’s conduct in compelling the work was undertaken for self-dealing and ulterior purposes and not for the benefit of the Brevoort. Her actions were without excuse or justification. 51. Nardone’s wrongful acts caused damage to Helen who was and will be compelled to pay for unnecessary work to her apartment and, ultimately, to prosecute this action to enforce her rights under the proprietary lease and alteration agreement. 52. Nardone’s tortious conduct has continued in her defense of this action. Upon information and belief, the affidavit that Nardone filed in opposition to Helen’s initial motion for 12 injunctive relief to permit her to proceed with the replacement of her laundry machines (as opposed to a costly alteration) was intentionally false and misleading in at least the following respects: a. Nardone represented in her sworn statement to the Court that the Brevoort’s house rules adopted in 2010 and accompanying alteration agreement require Helen to install three so-called failsafe devices when, in fact, the documents do not speak of such devices. Nardone Aff. 4917-18. b Nardone sought to create a false issue for the Court by swearing that the three “recommended [washing machine] brands are low sudsing machines,” even though it is the detergent that determines the amount of suds, not the brand. Nardone Aff. 15. Moreover, neither the 2010 house rules nor their application to Helen provides any basis for Nardone’s characterization of the brands as “recommended.” Cc. Nardone sought to mislead the Court by maintaining that the existing vent must be removed to allow clothes dryers “to exist in harmony with a 1955 building by not penetrating and compromising our brick fagade.” Nardone Aff. 17. The statement was a fabrication because: (i) The vent was approved by the Brevoort, and Nardone is without authority to abrogate Helen’s contractual rights respecting a vent that has existed in harmony with the 1955 building for more than twenty years; (ii) The existing vent is not a proposed new penetration that would penetrate or compromise “our brick facade”; (iii) Notwithstanding Nardone’s purported concern for building penetrations, the new house rules adopted in 2010 actually mandate an increasing number of brick penetrations by requiring that window air conditioners be replaced only with through-the-bricks units; (iv) More than 4,176 penetrations of Brevoort building’s fagade exist and that number is increasing; and (v) The Brevoort regularly 13 cuts new scupper holes about the same size as the dryer vent, which scupper holes are visible from the street, in the bricks on terraces. 53. Nardone’s conduct constitutes a prima facie tort, which conduct was done recklessly, in bad faith, intentional, targeted at Helen, inappropriate, unreasonable, arbitrary, capricious, malicious and vindictive, a breach of Nardone’s fiduciary duties to, and duty to act in good faith with, and duty of care to, Helen. 54, Nardone’s actions, including but not limited to her failure to correct or withdraw her false affidavit filed with this Court, are sufficiently reckless and intentional and in excess of her authority so as to require her to pay actual damages to Helen in an amount to be determined at trial but which is believed to be not less than $75,000, and punitive damages in an amount not less than $2,000,000. FOURTH CAUSE OF ACTION Tortious Interference with Contract — Against Nardone 55. Helen repeats and realleges each of the foregoing allegations with the same force and effect as if set forth at length herein. 56. At all times relevant, the proprietary lease and alteration agreements were valid and binding contracts between Helen and the Brevoort. 57. At all times relevant, Nardone knew of the contracts between Helen and the Brevoort. 58. Nardone intentionally interfered with the Brevoort’s contractual obligations owed to Helen by preventing the replacement of Helen’s laundry machines. 59. Nardone’s intentional interference with the contractual obligations was without justification in that it was undertaken to compel Helen to proceed with a substantial and costly 14 alteration that would benefit Nardone personally through her special relationship with Lane, the Brevoort’s engineer. 60. Nardone’s actions in interfering with Helen’s contractual rights were not taken on behalf of the Brevoort and she did not act within the scope of her authority. 61. By virtue of Nardone’s actions in blocking the replacement of Helen’s laundry machines for the purpose of compelling a costly alteration of her laundry, Nardone is liable for actual damages in an amount to be determined at trial but which is believed to be not less than $75,000, and punitive damages in an amount not less than $2,000,000. FIFTH CAUSE OF ACTION Attorneys’ Fees Pursuant to R.P.L. § 234 — Against the Brevoort 62. Helen repeats and realleges each of the foregoing allegations with the same force and effect as if set forth at length herein. 63. Paragraph 27 of the proprietary lease provides for the recovery by the Brevoort of attorneys’ fees and expenses. Pursuant to section 234 of the Real Property Law, the provision for attorneys’ fees and expenses is deemed by law to be reciprocal. 64. By virtue of the foregoing, Helen is entitled to a judgment for her reasonable attorneys’ fees and expenses. SIXTH CAUSE OF ACTION Contract Damages — Against the Brevoort 65. Helen repeats and realleges each of the foregoing allegations with the same force and effect as if set forth at length herein. 66. The Brevoort breached the proprietary lease and alteration agreement by preventing Helen from replacing her clothes washer and gas dryer. 15 67. By virtue of the Brevoort’s failure to honor and breach of the contracts, Helen has been without a properly functioning laundry in her apartment. 68. By virtue of the Brevoort’s failure to honor and breach of the contracts, Helen will sustain damages to (a) to alter the laundry to accommodate new appliances wrongfully mandated by the Brevoort or (b) remove the laundry and restore it to usable alternative space. 69. By virtue of the Brevoort’s failure to honor and breach of the contracts, Helen has sustained a loss in the market value of her apartment. 70. By virtue of the foregoing, Helen is entitled to a judgment for damages in an amount to be determined at trial but which is believed to be in excess of $300,000. SEVENTH CAUSE OF ACTION Treble Damages under Judiciary Law § 487 — Against Nardone 71. Helen repeats and realleges each of the foregoing allegations with the same force and effect as if set forth at length herein. 72. Judiciary Law section 487 provides: An attorney or counselor who: 1. Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party; or, 2. Willfully delays his client's suit with a view to his own gain; or, willfully receives any money or allowance for or on account of any money which he has not laid out, or becomes answerable for, is guilty of a misdemeanor, and in addition to the punishment prescribed therefor by the penal law, he forfeits to the party injured treble damages, to be recovered in a civil action. 73. Upon information and belief, Nardone violated the Judiciary Law by not correcting the false and misleading statements in her affidavit previously submitted to this Court. 74. By virtue of the foregoing, Helen is entitled to a judgment against Nardone for her damages proximately cause by the filing of the false affidavit which, pursuant to section 487 of the Judiciary Law, are to be trebled. 16 EIGHTH CAUSE OF ACTION Property Damage — Against the Brevoort 75. Helen repeats and realleges each of the foregoing allegations with the same force and effect as if set forth at length herein. 76. In or about 2013, the living room air conditioner in the Sillers’ apartment was damaged by the negligence of contractors engaged by the Brevoort to perform work at the Building and the negligence of the Brevoort in failing adequately and properly to supervise the work. 71. As a result of the actions of the Brevoort and its contractors, Helen was compelled to replace the air conditioner in or about June 6, 2013 at a cost to her of $1,740.91. 78. By virtue of the foregoing, Helen is entitled to a judgment against the Brevoort for $1,740.91 plus legal interest thereon from June 6, 2013. WHEREFORE, Helen demands judgment as follows: A On the first and second causes of action, a declaratory judgment and permanent injunction, or other appropriate relief, against the Brevoort and Nardone: B On the third and fourth causes of action, actual damages of not less than $75,000 and punitive damages of not less than $2,000,000 against Nardone; Cc. On the fifth cause of action, a money judgment against the Brevoort for Helen’s reasonable attorney’s fees and expenses; D On the sixth cause of action, damages of not less than $300,000 against the Brevoort; E On the seventh cause of action, treble the damages against Nardone for her filing of a false affidavit; 17 F On the eighth cause of action, damages of $1,740.91, plus interest at the legal rate from June 6, 2013, against the Brevoort for property damage; and G Such other and further relief as this Court deems just and proper. Dated: New York, New York October 21, 2014 THE LAW OFFICES OF SHELDON EISENBERGER By Daniel S. inbel Counsel 30 Broad Street, 27th Floor New York, NY 10004 (212) 422-3843 STEPHEN I. SILLER, ESQ. 885 Third Avenue, 16th Floor New York, NY 10022 (212) 981-2330 Attorneys for Plaintiff Helen Siller 18 VERIFICATION Helen Siller, being duly sworn, deposes and says: 1 1 am the plaintiff in the above-entitled action. 1 am over 21 years of age. 2, I have read the foregoing Second Amended Verified Complaint and know the contents thereof. The contents of the Second Amended Verified Complaint are true to my knowledge, except as to matters therein stated to be alleged on information and belief and as to those matiers I believe them to be true. To the best of my knowledge, information and belief, formed after an inquiry reasonable under the circumstances, the presentation of these papers or the contentions therein are not frivolous as detined in Subsection (c) of Section 130-1.1 of the Rules of the Chief Administrative Judge (22 NYCRR). — Helen Siller, Plaintiff Sworn to before me this 2 Py of October, 2014. [NOTARY PUBLIC SEAL] o~\ he Coy F Uo \or. GREGORY SHTYAKALO Netary Public - State of New York NO. 01SH6283075 Qualified in Kings Count; My Commission Expires May 28, 2017 19