Preview
INDEX NO. 151313/2014
(FILED: NEW YORK COUNTY CLERK 0571272014)
NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 05/12/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
icici isaac aie oN oRtinuENanESRNERUaNeCIS Index No, 151313/2014
HELEN SILLER,
Individually and derivatively as a shareholder of, and
on behalf of, The Third Brevoort Corporation,
Plaintiff,
- against -
THE THIRD BREVOORT CORPORATION,
DIANE C. NARDONE, CLIFF RUSSO,
ELIZABETH LOUIE, ANDREW BAUM,
GEORGE ALOI, CHRISTINE BECK, BONNIE
HILLER, MORTIMOR C. LAZARUS, JANE
WARREN, JOHN C. WOELL and BARBARA
EISENBERG,
Defendants.
sees inna i inne alia nanan ea aim anata
PLAINTIFF’S MEMORANDUM OF LAW
IN SUPPORT OF HER MOTIN FOR
PARTIAL SUMMARY JUDGMENT
THE LAW OFFICE OF
SHELDON EISENBERGER
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
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
hia RR SRC CN RSS CE ARNT Index No. 151313/2014
HELEN SILLER,
Individually and derivatively as a shareholder of, and
on behalf of, The Third Brevoort Corporation,
Plaintiff,
- against -
THE THIRD BREVOORT CORPORATION,
DIANE C. NARDONE, CLIFF RUSSO,
ELIZABETH LOUIE, ANDREW BAUM,
GEORGE ALOI, CHRISTINE BECK, BONNIE
HILLER, MORTIMOR C. LAZARUS, JANE
WARREN, JOHN C. WOELL and BARBARA
EISENBERG,
Defendants.
sh
PLAINTIFF’S MEMORANDUM OF LAW
IN SUPPORT OF HER MOTIN FOR
PARTIAL SUMMARY JUDGMENT
Plaintiff Helen Siller (“Helen”) submits this memorandum of law in support of her
motion for partial summary judgment on the first cause of action of her complaint. By that cause
of action, she seeks declaratory and injunctive relief concerning the breach by defendant The
Third Brevoort Corporation (“Brevoort”) of its contractual obligations in refusing to permit the
replacement of a washing machine and clothes dryer that were installed 23 years ago in
connection with the combination of two apartments and the construction of a laundry/utility
room. The washing machine no longer is working and cannot be repaired. Replacement of both
machines is necessary because they are stacked together and share controls. The Brevoort is
refusing to permit Helen to replace the machines even though there is an alteration agreement in
place, made 23 years ago, pursuant to which the Brevoort approved the laundry room and
appliances.
The erroneous reason given by the Brevoort for refusing to abide its contractual
obligations is a change in the house rules made a few years ago that specifies three particular
brands for washing machines and dryers and the installation of self-venting electric dryers to
avoid making penetrations through the building’s brickwork. The new rule, however, is
inapplicable here because there already exists a venting gas dryer (to be replaced together with
the washing machine) and the brands specified in the house rule do not sell gas dryers or a
washing machine that can be combined with the existing dryer. Moreover, the replacement
appliances that Helen has proposed, which are manufactured by Frigidaire, are equivalent or
superior in performance to the approved brands. Accordingly, as a matter of law and fact, there
is no basis for the Brevoort not to abide its contractual obligations and adhere to its consent
granted under the alteration agreement years ago.
Argument
DEFENDANT’S REFUSAL TO PERMIT THE REPLACEMENT
BY PLAINTIFF OF HER WASHING MACHINE AND CLOTHES DRYER
WITH COMPARABLE APPLIANCES IS WITHOUT BASIS IN LAW OR FACT
Having previously granted its consent to Helen’s laundry room installation, the Brevoort
cannot block the replacement of appliances that have reached the end of their serviceable lives.
Pursuant to the proprietary lease, Helen is responsible for the interior of the apartment, including
the appliances:
NINETEENTH: The Lessee shall keep the interior of the
apartment ... in good repair and good condition, ... and shall be
solely responsible for the maintenance, repair and replacement of
electrical, lighting, plumbing, gas and heating fixtures and
equipment, and such refrigerators, air conditioning units, washing
machines, flues and ranges as may be in the apartment. * * *
Proprietary Lease 419 (Siller Aff. Ex. D). It is an undisputed fact that there currently exist in the
apartment a washing machine and gas clothes dryer. Siller Aff. {1 and Ex. A. These appliances
were installed in connection with the combination of two apartments and creation of a
laundry/utility room that was accomplished with the Brevoort’s prior written consent in
accordance with paragraph 20 of the proprietary lease and under the terms of an alteration
agreement made as of May 1990. Siller Aff. §4 and Ex. E. Pursuant to the alteration agreement,
the Board of Directors of the Brevoort made “the final decision whether the alterations proposed
to be made may in fact be made.” Alteration Agreement 41 (Siller Aff. Ex. E). It is undisputed
that the Brevoort approved the alterations to the apartment, including the installation of the
washer and dryer.
Under paragraph 16 of the proprietary lease, the Brevoort may “establish such reasonable
house rules as its Board of Directors may deem necessary for the management and control of the
building.” Proprietary Lease J 16 (emphasis added). The board, however, may not enact rules
that change the terms of the contract as set forth in the proprietary lease and bylaws. Board of
Mgrs. Of Village View Condo. v. Forman, 78 A.D.3d 627 (2d Dep’t 2010) (invalidating a house
rule banning pets); 230 Park South Apartments Inc., 48 A.D.3d 103 (1st Dep’t 2007) (rejecting
house rule interfering with access to commercial unit); Zimiles v. Hotel Des Artistes, 216 A.D.2d
45 (1st Dep’t 1995) (invalidating sublet fee surcharge); North Broadway Estates, Ltd. v.
Schmildt, 147 Misc. 2d 1098, 1101 (Civ. Ct., N.Y. Co. 1990) (rejecting imposition of an
unauthorized late fee). Moreover, in this instance, the inclusion of the word “reasonable”
subjects the house rules to higher scrutiny “under a standard of reasonableness, rather than the
business judgment rule ordinarily applicable to cooperative board action.” Braun v, 941 Park
Ave., Inc., 32 A.D.3d 21, 24 (1st Dep’t 2006).
The Brevoort has objected to the proposed Frigidaire appliances on the basis of rule 4 of
the Amended and Restated House Rules of the Brevoort Corporation as of April 1, 2012. Siller
Aff. Ex. 4. The rule provides:
4 Dishwashers, garbage disposals, washing 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 Alternations [sic] 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.
As noted above, however, the house rule cannot negate the parties’ contractual obligations.
Indeed, rule 4 appears to acknowledge as much in making an exception for that which is
otherwise permitted by an alteration agreement.
In this instance, the Brevoort already gave its consent to the laundry room and the
particular installation involving a washer and gas dryer, surrounding cabinetry that necessitates
the installation of comparably sized equipment, and a vent to the adjacent terrace that enabled the
installation of the more efficient gas dryer. That consent, which is not and cannot be disputed,
may not be revoked based on a subsequently enacted house rule. See, e.g., Babeli v. 7-11 East
13th Street Tenant Corp., N.Y.L.J., Dec. 3, 2003 (Sup. Ct., N.Y. Co. 2003) (“plaintiff
is
currently being deprived of use of her premises as permitted under the Alteration Agreement” by
condominium’s interference with the completion of authorized work).
Where as here, the language of the contracts are plain and unambiguous, the
interpretation is a matter of law for the Court. Thus, in Himmelberger v. 40-50 Brighton First
Road Apartments Corp., 94 A.D.3d 817 (2d Dep’t 2012), the court rejected an apartment
corporation’s attempt to recover costs for security services because that was not provided for in
the applicable agreements. The case turned on the application of
a proprietary lease, which is a valid contract that must be enforced
according to its terms (see Brickman v. Brickman Estate at the
Point., 6 A.D.3d 474, 476, 775 N.Y.S.2d 67). As a general rule,
“
Preview
INDEX NO. 151313/2014 (FILED: NEW YORK COUNTY CLERK 0571272014) NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 05/12/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK icici isaac aie oN oRtinuENanESRNERUaNeCIS Index No, 151313/2014 HELEN SILLER, Individually and derivatively as a shareholder of, and on behalf of, The Third Brevoort Corporation, Plaintiff, - against - THE THIRD BREVOORT CORPORATION, DIANE C. NARDONE, CLIFF RUSSO, ELIZABETH LOUIE, ANDREW BAUM, GEORGE ALOI, CHRISTINE BECK, BONNIE HILLER, MORTIMOR C. LAZARUS, JANE WARREN, JOHN C. WOELL and BARBARA EISENBERG, Defendants. sees inna i inne alia nanan ea aim anata PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF HER MOTIN FOR PARTIAL SUMMARY JUDGMENT THE LAW OFFICE OF SHELDON EISENBERGER 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 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK hia RR SRC CN RSS CE ARNT Index No. 151313/2014 HELEN SILLER, Individually and derivatively as a shareholder of, and on behalf of, The Third Brevoort Corporation, Plaintiff, - against - THE THIRD BREVOORT CORPORATION, DIANE C. NARDONE, CLIFF RUSSO, ELIZABETH LOUIE, ANDREW BAUM, GEORGE ALOI, CHRISTINE BECK, BONNIE HILLER, MORTIMOR C. LAZARUS, JANE WARREN, JOHN C. WOELL and BARBARA EISENBERG, Defendants. sh PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF HER MOTIN FOR PARTIAL SUMMARY JUDGMENT Plaintiff Helen Siller (“Helen”) submits this memorandum of law in support of her motion for partial summary judgment on the first cause of action of her complaint. By that cause of action, she seeks declaratory and injunctive relief concerning the breach by defendant The Third Brevoort Corporation (“Brevoort”) of its contractual obligations in refusing to permit the replacement of a washing machine and clothes dryer that were installed 23 years ago in connection with the combination of two apartments and the construction of a laundry/utility room. The washing machine no longer is working and cannot be repaired. Replacement of both machines is necessary because they are stacked together and share controls. The Brevoort is refusing to permit Helen to replace the machines even though there is an alteration agreement in place, made 23 years ago, pursuant to which the Brevoort approved the laundry room and appliances. The erroneous reason given by the Brevoort for refusing to abide its contractual obligations is a change in the house rules made a few years ago that specifies three particular brands for washing machines and dryers and the installation of self-venting electric dryers to avoid making penetrations through the building’s brickwork. The new rule, however, is inapplicable here because there already exists a venting gas dryer (to be replaced together with the washing machine) and the brands specified in the house rule do not sell gas dryers or a washing machine that can be combined with the existing dryer. Moreover, the replacement appliances that Helen has proposed, which are manufactured by Frigidaire, are equivalent or superior in performance to the approved brands. Accordingly, as a matter of law and fact, there is no basis for the Brevoort not to abide its contractual obligations and adhere to its consent granted under the alteration agreement years ago. Argument DEFENDANT’S REFUSAL TO PERMIT THE REPLACEMENT BY PLAINTIFF OF HER WASHING MACHINE AND CLOTHES DRYER WITH COMPARABLE APPLIANCES IS WITHOUT BASIS IN LAW OR FACT Having previously granted its consent to Helen’s laundry room installation, the Brevoort cannot block the replacement of appliances that have reached the end of their serviceable lives. Pursuant to the proprietary lease, Helen is responsible for the interior of the apartment, including the appliances: NINETEENTH: The Lessee shall keep the interior of the apartment ... in good repair and good condition, ... and shall be solely responsible for the maintenance, repair and replacement of electrical, lighting, plumbing, gas and heating fixtures and equipment, and such refrigerators, air conditioning units, washing machines, flues and ranges as may be in the apartment. * * * Proprietary Lease 419 (Siller Aff. Ex. D). It is an undisputed fact that there currently exist in the apartment a washing machine and gas clothes dryer. Siller Aff. {1 and Ex. A. These appliances were installed in connection with the combination of two apartments and creation of a laundry/utility room that was accomplished with the Brevoort’s prior written consent in accordance with paragraph 20 of the proprietary lease and under the terms of an alteration agreement made as of May 1990. Siller Aff. §4 and Ex. E. Pursuant to the alteration agreement, the Board of Directors of the Brevoort made “the final decision whether the alterations proposed to be made may in fact be made.” Alteration Agreement 41 (Siller Aff. Ex. E). It is undisputed that the Brevoort approved the alterations to the apartment, including the installation of the washer and dryer. Under paragraph 16 of the proprietary lease, the Brevoort may “establish such reasonable house rules as its Board of Directors may deem necessary for the management and control of the building.” Proprietary Lease J 16 (emphasis added). The board, however, may not enact rules that change the terms of the contract as set forth in the proprietary lease and bylaws. Board of Mgrs. Of Village View Condo. v. Forman, 78 A.D.3d 627 (2d Dep’t 2010) (invalidating a house rule banning pets); 230 Park South Apartments Inc., 48 A.D.3d 103 (1st Dep’t 2007) (rejecting house rule interfering with access to commercial unit); Zimiles v. Hotel Des Artistes, 216 A.D.2d 45 (1st Dep’t 1995) (invalidating sublet fee surcharge); North Broadway Estates, Ltd. v. Schmildt, 147 Misc. 2d 1098, 1101 (Civ. Ct., N.Y. Co. 1990) (rejecting imposition of an unauthorized late fee). Moreover, in this instance, the inclusion of the word “reasonable” subjects the house rules to higher scrutiny “under a standard of reasonableness, rather than the business judgment rule ordinarily applicable to cooperative board action.” Braun v, 941 Park Ave., Inc., 32 A.D.3d 21, 24 (1st Dep’t 2006). The Brevoort has objected to the proposed Frigidaire appliances on the basis of rule 4 of the Amended and Restated House Rules of the Brevoort Corporation as of April 1, 2012. Siller Aff. Ex. 4. The rule provides: 4 Dishwashers, garbage disposals, washing 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 Alternations [sic] 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. As noted above, however, the house rule cannot negate the parties’ contractual obligations. Indeed, rule 4 appears to acknowledge as much in making an exception for that which is otherwise permitted by an alteration agreement. In this instance, the Brevoort already gave its consent to the laundry room and the particular installation involving a washer and gas dryer, surrounding cabinetry that necessitates the installation of comparably sized equipment, and a vent to the adjacent terrace that enabled the installation of the more efficient gas dryer. That consent, which is not and cannot be disputed, may not be revoked based on a subsequently enacted house rule. See, e.g., Babeli v. 7-11 East 13th Street Tenant Corp., N.Y.L.J., Dec. 3, 2003 (Sup. Ct., N.Y. Co. 2003) (“plaintiff is currently being deprived of use of her premises as permitted under the Alteration Agreement” by condominium’s interference with the completion of authorized work). Where as here, the language of the contracts are plain and unambiguous, the interpretation is a matter of law for the Court. Thus, in Himmelberger v. 40-50 Brighton First Road Apartments Corp., 94 A.D.3d 817 (2d Dep’t 2012), the court rejected an apartment corporation’s attempt to recover costs for security services because that was not provided for in the applicable agreements. The case turned on the application of a proprietary lease, which is a valid contract that must be enforced according to its terms (see Brickman v. Brickman Estate at the Point., 6 A.D.3d 474, 476, 775 N.Y.S.2d 67). As a general rule, “