Motion To Dismiss
Motion To Dismiss
Motion To Dismiss
COUNTY OF QUEENS
-------------------------------------------------------------------x
JERRY IANNECE & LYNN IANNECE,
Index No.: 4291/2017
Plaintiffs,
-against-
Defendants.
-------------------------------------------------------------------x
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
POINT I
POINT II
POINT III
POINT IV
POINT V
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Table of Authorities
Cases
Annis v. Long,
298 A.D.2d 340 (2d Dept. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Busier v. Corbett,
259 A.D.2d 13 (4th Dept. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-7
Caldwell v. Sara,
2003 WL 182937 (S.D.N.Y. Jan. 28, 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Faberge v. DiPino,
109 A.D.2d 235 (1st Dept. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Feinstein v. Bergner,
48 N.Y.2d 234 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Friedman v. Anderson,
23 A.D.3d 163 (1st Dept. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Helmer v. Comito,
61 A.D.3d 635 (2d Dept. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-17
Kaszovitz v. Weiszman,
110 A.D.2d 117 (2d Dept. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Leon v. Martinez,
84 N.Y.2d 83 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Macchia v. Russo,
67 N.Y.2d 592 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Markoff v. South Nassau Cmty Hosp.,
61 N.Y.2d 283 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Murphy v. State,
14 A.D.3d 127 (2d Dept. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
OConnell v. Post,
27 A.D.3d 630 (2d Dept. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Pollak v. Moore,
85 A.D.3d 578 (1st Dept. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Sanders v. Elie,
29 A.D.3d 773 (2d Dept. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-7
Statutes
Plaintiffs,
- against -
Defendants.
---------------------------------------------------------------x
INTRODUCTION
This memorandum of law is respectfully submitted by Defendants The 47-55 39th Place
Condominium (the Condominium), and individual board members Raymond Chan (Chan),
Haresh Kumar Joshi (H. Joshi), Neal Milano (Milano), Dastagir Hossain (Hossain), and
Samir Joshi (S. Joshi) (collectively, the Defendants) in support of their motion to dismiss,
BACKGROUND
Exhibit (Ex.) C to the Affirmation of Neal Milano (Milano Aff.)). The Board of Managers
(BOM) was established as the governing body of the Condominium and members of the BOM
are elected to their positions by unit owners at the Condominiums annual Unit Holder meetings.
(Id.). The BOM meets regularly to discuss matters relevant to management of the Condominium,
1
to update the members on regular activity and any potential issues that the Condominium may
have, and to consider solutions. (Milano Aff. 6-7). The BOM acts in furtherance of the
Condominiums interests. (Id., 7). The BOM votes on each decision and takes action only upon
a majority vote. (Id.). Defendant Milano became a member of the BOM in 2012. (Id., 5).
The Condominium comprises 47 individually owned units, and 1 additional unit allocated
The only complainants are Plaintiffs Jerry Iannece and Lynn Iannece who purchased two
apartments in the Condominium, Units 1D and 4B (the Apartments) in 2008 and 2014
respectively. (Ex. A, Complaint 2). Plaintiffs are not residents at the Condominium, and assert
The Plaintiffs are dissatisfied with the manner in which the BOM has run the
Condominiums activities. But their remedy is to influence the decisions of the BOM, rather than
to complain in this litigation. In fact, Plaintiff Jerry Iannece ran as a candidate for membership in
the BOM in 2014, and lost. (Ex. L, November 25, 2014 Unit Owners Meeting Minutes).
PROCEDURAL HISTORY
The summons and complaint were filed on April 24, 2017. The Condominium was served
by service upon the Secretary of State on or about May 10, 2017. However, it appears that
Defendant Chan moved out of the Condominium building in February 2017. (Chan Aff.
2). No affidavit of service upon Chan was found in the Courts file. Defendant Samir Joshi
moved out of the Condominium building nearly two years ago in June 2015. (S. Joshi Aff. 2).
Plaintiffs, who are unit owners of the Condominium, would with reasonable diligence have been
2
aware that neither of those individuals lived in the building during the time of service.
Yet, despite Samir Joshi leaving the building nearly two years prior to commencement of
the action, the affidavit of service indicates that service was merely attempted at the place he
lived two years ago. (Both Raymond Chan and Samir Joshi resigned as board members upon
As shown below, the plaintiffs process server merely made a cursory attempt at proper
service, and improperly promptly defaulted to purported service under CPLR 308(4). And the
individuals did not receive a copy via mailing. (Chan Aff. 4; S. Joshi Aff. 4; H.K. Joshi Aff.
4; Hossain Aff. 3; Milano Aff. 3). The failure to exercise due diligence (or send a mailing)
ARGUMENT
POINT I
This Action Should Be Dismissed as Against the Individual Board Members Because
They Were Not Properly Served under CPLR 3211(a)(8) and CPLR 308
This action should be dismissed as against the Individual Board Members because
Plaintiffs failed to properly serve these defendants as required by CPLR 308. Therefore, this
It is well settled that the plaintiff has the burden of proving, by a preponderance of the
credible evidence, that service was properly made . . . Persaud v. Teaneck Nursing Ctr., Inc.,
290 A.D.2d 350, 351 (1st Dept. 2002) (citation omitted). Here, Plaintiffs have not properly
3
Service [of process] is only effective . . . when it is made pursuant to the appropriate
method authorized by the CPLR. Foy v. 1120 Ave. of Ams. Assocs., 223 A.D.2d 232, 234 (2d
Dept. 1996), citing Markoff v. South Nassau Cmty Hosp., 61 N.Y.2d 283, 288 (1984); Feinstein
Service of process must be made in strict compliance with statutory methods for
effecting personal service upon a natural person pursuant to CPLR 308. Estate of Waterman v.
Jones, 46 A.D.3d 63, 65 (2d Dept. 2007) (citations omitted & emphasis added). To sustain [an
improper] service would encourage carelessness, or worse, thus increasing the risk of default by
parties who, in fact, fail to receive the summons. McDonald v. Ames Supply Co., 22 N.Y.2d
A finding of jurisdiction without proper service, would negate the statutory procedure
for dismissing the action for lack of jurisdiction. See id., at 115; accord Macchia v. Russo, 67
N.Y.2d 592, 595 (1986) (In a challenge to service of process, the fact that a defendant has
received prompt notice of the action is of no moment. Notice received by means other than those
authorized by statute does not bring a defendant within the jurisdiction of the court.) (internal
citations omitted).
Nail and mail or affix and mail service pursuant to CPLR 308 (4) may be made
only when service under CPLR 308(1) and (2) cannot be made with due diligence. CPLR
308(4). Due diligence is the diligence reasonably expected from, and ordinarily exercised by a
person who seeks to satisfy a legal requirement or to discharge an obligation. See Blacks Law
Dictionary (8th ed. 2004), p. 488. Strict adherence to the statute is a jurisdictional requirement,
irrespective of whether the defendant has notice or otherwise receives the summons.
4
Actual notice does not cure a defect in service or confer personal jurisdiction on the
court. Kaszovitz v. Weiszman, 110 A.D.2d 117 (2d Dept. 1985). In Kaszovitz, the Court found
the affidavit of service defective on its face as it showed three attempts of service at three
different times on weekdays during normal working hours or times when it could be reasonably
concluded that one was in transit to or from the place of employment. The Court held that a
defendant may have actually received a copy of the summons and complaint, was irrelevant.
Id., at 120.
[T]he due diligence requirement refers to the quality of the efforts made to effect
personal service, and certainly not to their quantity or frequency. Barnes v. City of New York, 70
A.D.2d 580 (2d Dept. 1979), affd, 51 N.Y.2d 906 (1980). In County of Nassau v. Letosky, 34
A.D.3d 414, 415 (2d Dept. 2006), the Court required that [t]he due diligence requirement of
CPLR 308(4) must be strictly observed, given the reduced likelihood that a summons served
pursuant to that section will be received. (emphasis added & citation omitted). The Court in
Letosky held:
Contrary to the plaintiffs contention, the Supreme Court properly concluded that
the attempts to serve the defendant Tina M. Letosky at her residence did not
satisfy the due diligence requirement. Two of the three attempts at service were
made on weekdays during hours when it reasonably could have been expected
that Letosky was either working or in transit to work (see OConnell v. Post,
supra; Earle v. Valente, 302 A.D.2d 353, 754 N.Y.S.2d 364; Annis v. Long, 298
A.D.2d 340, 751 N.Y.S.2d 370). Moreover, there is no indication that the process
server made any attempt to locate Letoskys business address in order to
effectuate service at that location (see Sanders v. Elie, 29 A.D.3d 773, 816
N.Y.S.2d 509; O'Connell v. Post, supra; Gurevitch v. Goodman, supra; Moran v.
Harting, 212 A.D.2d 517, 622 N.Y.S.2d 121). Although the plaintiff notes that
Letosky did not deny receipt of the summons and complaint affixed to the door of
her residence, when the requirements for service of process have not been met, it
is irrelevant that defendant may have actually received the documents Raschel v.
Rish, 69 N.Y.2d 694, 697, 512 N.Y.S.2d 22, 504 N.E.2d 389; see Hillary v.
5
Grace, 213 A.D.2d 450, 623 N.Y.S.2d 620; Dewey v. Hillcrest Gen. Hosp., 201
A.D.2d 609, 607 N.Y.S.2d 967). Accordingly, Letoskys motion to dismiss the
complaint insofar as asserted against her for lack of personal jurisdiction was
properly granted.
In County of Nassau v. Long, 35 A.D.3d 787, 787-88 (2d Dept. 2006), the Second
Department again emphasized that even a series of attempts to make service under CPLR
308(1) & (2) will not suffice to employ nail and mail service of process to effectuate
Contrary to the plaintiffs contention, the Supreme Court properly concluded that
the attempts to serve the defendant Patrick Long at his residence did not satisfy
the due diligence requirement for so-called nail and mail service under CPLR
308(4). Here, the attempts preceding service were made on August 18, 2005, a
Thursday, at 7:00 P.M., August 19, 2005, at 3:45 P.M., and August 23, 2005, a
Tuesday, at 7:44 P.M. These attempts were made on weekdays during hours when
it reasonably could have been expected that Long was either working or in transit
to or from work (see County of Nassau v. Letosky, 34 A.D.3d 414, 824 N.Y.S.2d
153; OConnell v. Post, 27 A.D.3d 630, 631, 811 N.Y.S.2d 441). Moreover, there
is no indication that the process server made any attempt to locate Longs
business address or to effectuate personal service thereat (see County of Nassau v.
Letosky, supra; Sanders v. Elie, 29 A.D.3d 773, 774, 816 N.Y.S.2d 509).
Accordingly, the Supreme Court properly granted that branch of Longs motion
which was to dismiss the complaint insofar as asserted against him for lack of
personal jurisdiction.
Long, 35 A.D.3d at 787-788; see County of Nassau v. Yohannan, 34 A.D.3d 620, 620-21 (2d
Dept. 2006); Earle v. Valente, 302 A.D.2d 353 (2d Dept. 2003); Annis v. Long, 298 A.D.2d 340,
For the purpose of satisfying the due diligence requirement of CPLR 308(4), it must
be shown that the process server made genuine inquiries about the defendants whereabouts and
place of employment. See Sanders v. Elie, 29 A.D.3d 773, 774 (2d Dept. 2006); Kurlander v. A
6
Big Stam, Corp., 267 A.D.2d 209 (2d Dept. 1999); Busier v. Corbett, 259 A.D.2d 13, 15 (4th
Dept. 1999). An attempt at a service when a defendant would not be expected to be at home, is a
prima facie failure to meet the minimum requirements of due process, absent a showing that
the plaintiffs process server ever made any genuine inquiries about the defendant's
whereabouts and place of employment, Estate of Waterman v. Jones, 46 A.D.3d 63, 66 (2d
In OConnell v. Post, 27 A.D.3d 630 (2d Dept. 2006), the court reviewed the process
servers affidavit of service to determine if due diligence had been made. The process server
made one attempt of service at the defendant's home address on a weekday at 6:16 p.m. and then
at the defendant's vacation home in East Hampton on a weekday at 7:45 a.m. The next day, also
a weekday, service was effectuated by nail and mail service at the defendants vacation home.
The court held that the [p]laintiff failed to satisfy due diligence in not making an effort to
In Sanders v. Elie, 29 A.D.3d 773 (2d Dept. 2006), the court found an absence of due
diligence where the process server made no attempt to locate the defendants business address or
attempt service at the business address. Thereafter, in County of Nassau v. Yohannan, 34 A.D.3d
620 (2d Dept. 2006), the court noted that the process server made two attempts at service, both
on weekdays during hours when it could be reasonably be expected that the defendants were
working or in transit to or from work. It rejected jurisdiction, noting that there is nothing in the
record to indicate that the process server made any attempt to inquire of the neighbors as to the
defendants working habits or to ascertain the defendants respective business addresses for the
purpose of effectuating personal service at those locations pursuant to CPLR 308(1) or (2).
7
The Second Department, in Abajian v. St. Francis Hosp., 42 A.D.3d 554 (2d Dept. 2007),
reversed the denial of a motion to dismiss for improper service of process, holding that the
attempts to serve [the defendant] pursuant to CPLR 308 (1) and 308 (2) prior to the employment
of the affix and mail method of service did not satisfy the due diligence requirement set forth
in CPLR 308 (4) (see County of Nassau v. Long, 35 A.D.3d 787, 826 N.Y.S.2d 739 (2nd Dept.
2006); County of Nassau v. Letosky, 34 A.D.3d 414, 824 N.Y.S.2d 153 (2nd Dept. 2006)).
Here, Plaintiffs failed to demonstrate due diligence to effectuate personal service or the
need to resort to affix and mail. Virtually any due diligence at all, such as asking a
resident/neighbor Does Samir Joshi live here? or Where does Samir Joshi work? or asking
the same questions about Raymond Chan, would have yielded that they no longer live at that
location. Instead, the affidavits of service yield that the process server spent under a total of 25
minutes (spread over three days) purporting to serve process on five individuals.
With regard to Defendant Chan, no affidavit of service is on file, and if the process server
made any effort to serve him, service would in all events be defective because no affidavit of
service was filed within the 20 days required by CPLR 308. Chan had sold his unit and moved
Similarly, Defendant S. Joshi sold his unit and moved from the building nearly two years
earlier, changing his home address. These defendants moved out of a building in which both
Plaintiffs owned two apartments and to which they had full access; they knew or should have
known (with any diligence) that these individuals did not live in the building at the time of
service of process.
8
According to the filed affidavits of service (Ex. B), the process server went to the
Condominium building for seven minutes on Wednesday, April 26, 2017, and reported that:
at 1:43 p.m., there was no answer at apartment 6A, the apartment that Samir
Joshi moved away from two years earlier; and at a time when it could be
reasonably be expected that he was working or in transit to or from work.
at 1:45 p.m., there was no answer at apartment 6H, the apartment of Dastagir
Hossain, at a time when it could be reasonably be expected that he was working
or in transit to or from work.
at 1:48 p.m., she left the summons and complaint with an unidentified co-
tenant at apartment 4C, the apartment of Haresh Kumar Joshi.
at 1:50 p.m., there was no answer at apartment 3B, the apartment of Neal
Milano, at a time when it could be reasonably be expected that he was working or
in transit to or from work.
The affidavits of service report that the process server returned to the building for 8
at 6:01 p.m., there was no answer at apartment 6A, the apartment that Samir
Joshi moved away from two years earlier; and at a time when it could be
reasonably be expected that he was working or in transit to or from work.
at 6:03 p.m., there was no answer at apartment 6H, the apartment of Dastagir
Hossain, at a time when it could be reasonably be expected that he was working
or in transit to or from work.
at 6:09 p.m., there was no answer at apartment 3B, the apartment of Neal
Milano, at a time when it could be reasonably be expected that he was working or
in transit to or from work.
With this fig-leaf of due diligence, the process server returned to the building on
Saturday, April 29, 2017, and purported to accomplish nail and mail service within seven
minutes on Samir Joshi (at 10:30 a.m.), Dastagir Hossain (at 10:32 a.m.), and Neal Milano (at
10:37 a.m.).
9
Further, in the absence personal in-hand service, a mailing was required to be sent to each
of them to complete service, Yet, Chan, S. Joshi, Milano, Hossain, and H.K. Joshi (the
Individual Board Members) attest to the failure to receive such a mailing. (Chan Aff. 4; S.
Joshi Aff. 4; H.K. Joshi Aff. 4; Hossain Aff. 3; Milano Aff. 3).
Thus, service was defective for all the individual defendants. We therefore respectfully
In deciding a motion under CPLR 3211(a)(7), the court must liberally construe the
pleading, accept the alleged facts as true, accord the non-moving party the benefit of every
possible favorable inference, and determine only whether the alleged facts fit within any
cognizable legal theory. Leon v. Martinez, 84 N.Y.2d 83, 87 (1984). However, where the legal
conclusions and factual allegations are flatly contradicted by documentary evidence, they are not
presumed to be true or accorded every favorable inference. Biondi v. Beekman Hill House Apt.
Corp., 257 A.D.2d 76, 81 (1st Dept. 1999), affd, 94 N.Y.2d 659 (2000).
POINT II
A. The Complaint Does Not Allege that the Individual Defendants Committed
Separate Tortious Acts; There is No Basis for Personal Liability
that were not in their capacity of BOM membership. The individual BOM members are not
personally liable for the actions conducted on behalf of the Condominium, and the Complaint
10
Board members are not individually liable for the actions of the board absent the
allegation that they committed separate tortious acts. Meadow Lane Equities Corp. v. Hill, 63
A.D.3d 699, 700 (2d Dept. 2009). In Meadow Lane, the Second Department dismissed the causes
of action against individual members of a cooperative board, including for breach of a fiduciary
duty, because the plaintiff failed to plead that a board member acted tortiously other than in her
Here, each of Plaintiffs claims are against the Condominium (inter alia) and its actions
and by extension against the individual members of the BOM (except for the 21st cause of action,
which references one individual Defendant). As these are claims against the Condominium and
do not involve separate tortious acts by the individual defendants, the Individual Board Members
are not subject to personal liability, and the Complaint should be dismissed as against them.
Moreover, as an independent ground to dismiss this case as against the individual BOM
members, the Condominiums By-Laws provide, that the members of the Condominium Board
shall have no liability to the Unit Owners for errors of judgment, negligence, or otherwise,
except that each member of the Condominium Board shall be liable thereto for his or her own
bad faith or willful misconduct. (Ex. C, By-Laws 2.20). A similar provision of the By-Laws
provides that the officers of the Condominium shall have no liability to the Unit Owners for
1
See also, Caldwell v. Sara, 2003 WL 182937, at *2 (S.D.N.Y. Jan. 28, 2003), where the
court granted a motion to dismiss where the plaintiff pretextually (to create federal diversity
jurisdiction) brought the action against individual members of a condominiums board for
actions of the board.
11
errors of judgment, negligence, or otherwise, except that each officer of the Condominium Board
shall be liable thereto for his or her own bad faith or willful misconduct. (Id., 3.10(A)).
The governing documents at issue here, i.e., each condominium associations bylaws
and declarations, are contracts, and our review and analysis thereof is governed by principles of
contract interpretation that are both familiar and well-settled. As a starting point, [i]t is
axiomatic that a contract is to be construed in accordance with the parties' intent, which is
generally discerned from the four corners of the document itself. Olszewski v. Cannon Point
These limitation of liability provisions apply here, and furnish an independent ground for
POINT III
In Faberge v. DiPino, 109 A.D.2d 235 (1st Dept. 1985) the Court held that a party who
was bound by arbitration was barred from seeking or obtaining any remedy other than in aid of
arbitration. Here, Plaintiffs who are purchasers of units in the Condominium and who have
agreed to abide by the terms and conditions in the By-Laws. See Murphy v. State, 14 A.D.3d
Here, in a clear-cut a dispute wherein Plaintiffs make allegations against the BOM, the
Condominium By-Laws require the dispute be resolved by arbitration; Any matter required or
Thus, to the extent that this matter survives the other bases for dismissal, the matter
12
should be submitted to arbitration.
POINT IV
The prolix complaint alleges a welter of causes of action that lack merit. Indeed, many of
The first notable point is that the Condominium comprises 47 individually owned units,
and one Condominium-owned unit that is allocated to the superintendent. (Milano Aff. 30).
The Plaintiffs are the owners of two of the 47 units, which they purchased by permission
of the BOM, which allowed them to purchase their units for investment purposes; both the
Declaration and the Condominiums By-Laws restrict use of the units to residence by their
the plaintiffs object to holiday decorations and festivity, and the buildings decor (the 11th and
12th Claims), their recourse is not judicial intervention, but rather to vote for a different Board of
Managers (BOM). In fact, the plaintiffs come to court because Plaintiff Jerry Iannece ran for
the BOM but lost the election. (Ex. L). It is thus ironic that the Plaintiffs allege that they were
Given the Plaintiffs investor status, it is also ironic that they claim that it is inappropriate
for the BOM to seek information from prospective purchasers, who would become fellow unit
owners of the Condominium (7th Claim); and challenge the BOMs votes that govern lease
13
renewals for the collective benefit of the Condominium (8th and 9th Claims) and to impose a $200
monthly fee on units that they are permitted by the BOM to rent out (10th Claim).
Many of the Plaintiffs claims pertain to interview, application, and management fees that
are authorized for the collective benefit and upkeep of the Condominium and its unit owners, that
are universally applicable to all unit owners, and are not alleged to be discriminatory or specific
Other claims challenge fines lawfully and properly imposed for violations of the By-
Laws and House Rules (13th and 14th Claims); a claim for $250,000 in alleged damages because
of a shed that was required by the Condominium to store its snow removal and other gas-
powered equipment [that may not lawfully be stored indoors] (16th Claim); and that alleges that
defendants disseminated libelous information about a tenant, without the Plaintiffs setting out a
viable allegation of defamation (15th Claim). CPLR 3016(a) (In an action for libel or slander,
The By-Laws permit fees such as are raised in Claims 1-5. (Ex. C, By-Laws 2.4A,
2.4A(xxiii); see also, 2.4A(xvii) (to levy and collect fines for violations of the Rules and
Regulations adopted or amended by the BOM)). According to the BOM Minutes, the BOM
voted to approve: a $750 interview and application fee for renters on November 11, 2012 (Ex.
D); an increase of the rental application fee to $2000 on December 14, 2014 (Ex. E); an increase
in the rental application fee to $2500 on June 7, 2015 (Ex. J); a $100 per month surcharge for
owners renting out apartments on July 8, 2016 (Ex. G); an increase to a $200 per month
surcharge for owners renting out apartments on January 9, 2017 (Ex. H); a $2500 service fee for
sellers with an $850 buyers application fee, a $1500 condominium management fee, a
14
refundable $1000 damage deposit, and 3 months common charges in advance for buyers on
October 27, 2014 (Ex. I); and an increase to a $1500 buyers application fee and $5000 sellers
processing fee on December 14, 2014 (Ex. E). The House Rules from January 20, 2017
mandated a $500 fine for certain improper removal of garbage (Ex. N) and the Notice to the
These series of minutes reflect the discussions and votes the BOM conducted with regard
to the fines and fees referred to in Claims 1-5, 10, 13-14. These minutes demonstrate that (a) the
BOM considered the issues involved with regard to these fees, (b) the BOM, whose duty is to the
Condominium voted in favor of these fees, and (c) the unit owners continued to vote for the
BOM despite the existence of these fees and the growth of these fees over the years, which
shows unit holder agreement with the need for these fees.
These fees (and the additional restriction on rental tenants and unit sales referred to in
Claims 7-9) were and are understandable for multiple reasons beyond merely raising funds for
the common good of the Condominium and its unit owners. They include the process for
approving tenants, and increased Condominium expenses referable to non-owner tenants who
have less stake in the common good, such as increased clean-up and the separation of
recyclables. The disposal of the X-mas tree referenced in Claim 14 is merely such an example.
In Claims 7-9, Plaintiffs object to the BOMs attempts to manage who moves into the
building based on standard criteria and the ability to safely and orderly maintain the premises
without requiring increased maintenance costs, sanitation costs, and security costs. In Claim 12,
Plaintiffs object to standard holiday decorations and holiday music. In Claim 16, Plaintiffs object
to a shed in the rear yard, with no recognition that this is an unresolved matter, and that indoor
15
storage of gas-powered tools such as the leaf blower and snow blower bears risk of danger that
preclude their lawful indoor storage, such as in the basement. (See Milano Aff. 22).
Similarly, on June 7, 2011, the BOM voted to commission a mural of American history
for the common area walls when the income became available. (Ex. F). This reflects discussion
Claim 6 attacks the BOM elections process; on November 25, 2014, the unit owners held
an annual meeting and chose not to elect Plaintiff Jerry Iannece to the BOM. (Ex. L). On April
11, 2015, the BOM, considering the inherent stake of residents in the Condominiums well-
being, reasonably instituted a policy that board members must live in the Condominium for 1
Rounding out their scattershot complaints, the plaintiffs broadly allege harassment (17th
and 20th Claims); breach of contract (18th Claim); breach of fiduciary duty (19th and 21st Claims);
and a legally unsustainable claim for legal fees (23rd Claim). Finally, they allege that a claim by
the Condominium against defendant Milano was inappropriately settled (22nd Claim). This is an
inappropriately raised derivative claim. Moreover, the issue was raised and resolved by the BOM
As shown by documentary evidence, the duly elected members of the BOM have acted
lawfully, and with the consent of the unit owners who elected them.
apply the business judgment rule. . . . Under the business judgment rule, the courts inquiry is
limited to whether the board acted within the scope of its authority under the bylaws (a necessary
threshold inquiry) and whether the action was taken in good faith to further a legitimate interest
16
of the condominium. Absent a showing of fraud, self-dealing or unconscionability, the court's
inquiry is so limited and it will not inquire as to the wisdom or soundness of the business
decision. Helmer v. Comito, 61 A.D.3d 635, 636 (2d Dept. 2009) (citations and internal quotes
omitted); accord, 40-50 Brighton First Rd. Apartments Corp. v. Kosolapov, 39 Misc.3d 27, 28
29 (App. Term 2d Dept. 2013). Thus, merely making an unwise, unreasonable, or inexpedient
decision does not warrant judicial review of the boards decision. Matter of Levandusky v. One
The business judgment rule, which applies to condominium boards, prohibits judicial
inquiry into the actions of the board as long as the board acts for the purpose of the
condominium, within its authority and in good faith. Acevedo v. Town 'N Country
Condominium, Section I, Bd. of Managers, 51 A.D.3d 603, 604 (2d Dept. 2008) (citations
omitted).
In the context of the business judgment rule, a complaint must contain allegations
sufficient to demonstrate that directors did not act in good faith or were otherwise interested . . .
Higgins v. New York Stock Exch., Inc., 10 Misc.3d 257, 282 (S.Ct. N.Y. Co. 2005). Absent such
factual allegations, that actions were not taken in good faith and in the exercise of honest
judgment in the lawful and legitimate furtherance of corporate purposes . . . further judicial
inquiry is barred by the business judgment rule, and the plaintiffs claim for breach of fiduciary
duty must be dismissed pursuant to CPLR 3211(a)(7). Newman v. 911 Alwyn Owners Corp., 47
Misc.3d 1213(A) at *4 (S.Ct. N.Y.Co. 2015) (citation & internal quotation marks omitted).
Apart from broad conclusory allegations, the complaint is bereft of any detail to support
the plaintiffs claims that they were singled out, or discriminated against in any manner, or that
17
the BOM did not act in good faith or were otherwise interested . . . Higgins v. New York Stock
The management and application fees imposed are fully authorized for the well-being of
the Condominium; the obligations, duties and powers of the duly elected BOM, in order to
maintain the well-being of the enterprise are broad. The by-laws empower the BOM with all of
the powers and duties necessary for, or incidental to, the administration of the affairs of the
Condominium other than those prohibited to it by Law, the Condominium Declaration or the
These require the BOM to maintain the building and its financial condition in good and
proper order; entitle the BOM to determine the amount and establish the means and methods of
payment of, and to collect, the Common Charges and Special Assessments from the Unit
Owners (id., section 2.4(A)(v)); and to adopt and amend the Rules and Regulations and to levy
and collect fines against Unit Owners for violations of the same. (Id., 2.4(A)(xvii)); Cf. RPL
339-kk (Rents).
Moreover, the BOM is empowered to modify the Rules and Regulations of the
Condominium, subject to being overruled by the unit owners: The Condominium Board shall
have the right to amend, modify, add to or delete any of the Rules and Regulations from time to
time, provided, however, that any such amendment, modification, addition, or deletion may be
Notably, a condominium board may, for the maintenance and betterment of the building,
issue fines in accordance with its By-Laws. Bd. of Managers of the 200 W. 109 Condo. v. Baker,
244 A.D.2d 229, 22930 (1st Dept. 1997) (the Court held that the unit owner was required to pay
18
the boards assessed fine for a leak in the unit and dismissed claims including breach of fiduciary
Because the BOM acted pursuant to its authority under the Business Judgment Rule the
BOM was correct in assessing and imposing fines for Plaintiffs violations as per the House
Rules and By-Laws that were both in effect at the time of the 2017 fine. (Ex. C, By-Laws, 5.2;
see also, Ex. N, House Rules). It follows that judgment should be granted, dismissing these
causes of action.2
There was no discriminatory practice or arbitrariness here. In fact, BOM members Samir
Joshi and Raymond Chan who thereafter sold their units, paid the requisite application fees.
Thus, the business judgment rule precludes the plaintiffs actions involving raising and
collecting application fees and fines (see Claims 1-5, 10, 13-14), creating or administering By-
Laws and House Rules (see Claims 6-9), actions attempting to improve the building (see Claims
11-12, 14, 16), and generic and conclusory claims of breach of contract and breach of fiduciary
duty (see Claims 18-21), vague and conclusory allegations of harassment (see Claims 15, 17,
2
Each unit owner shall comply strictly with the by-laws and with rules, regulations,
resolutions and decisions adopted pursuant thereto. Failure to comply with any of the same shall
be ground for an action to recover sums due, for damages or injunctive relief or both
maintainable by the board of managers on behalf of the unit owners or, in a proper case, by an
aggrieved unit owner. RPL 339(j). Further, as noted earlier, petitioners agreed in their Deeds
to comply with the ByLaws of the CONDO and RPL 339j requires that [e]ach unit owner
shall comply strictly with the by-laws and with rules, regulations, resolutions and decisions
adopted pursuant thereto. Eimer v. Bd. of Managers of 5316 14th Ave. Condominium, 24
Misc.3d 1232(A) (S.Ct. Kings Co. 2009).
19
22), and demands for extraneous relief such as an accounting, punitive damages, or legal fees
POINT V
Claims 2, 6-10, 12, 14-17, 19-23 conclusorily allege self-dealing or bad faith. Alleging
such malintent in a complaint requires a significant level of particularity. Aside from failing to
plead the necessary elements against Defendants, Plaintiffs fail to satisfy the stringent pleading
requirements of CPLR 3016(b). CPLR 3016(b) requires that [w]here a cause of action . . .
[i]s based upon misrepresentation, fraud . . . [or] breach of trust . . . the circumstances
constituting the wrong shall be stated in detail. The failure to comply with the pleading
requirements of CPLR 3016(b) warrants dismissal of the claim. See, e.g., Zanett-Lombardier,
29 A.D.3d 495 (1st Dept. 2006); Ben-Zvi v. Kronish Lieb Weiner & Hellman LLP, 278 A.D.2d
167 (1st Dept. 2000); Brown v. State Farm Ins. Co., 237 A.D.2d 476 (2d Dept. 1997).
Plaintiffs Complaint merely lists some of the bare elements of the bad-faith-based causes
of action without any factual allegations detailing the allegations. Under CPLR 3016(b), the
sparse allegations of the complaint are insufficient, as the pleader must allege facts; a pleading
containing only conclusory allegations is dismissible. See Friedman v. Anderson, 23 A.D.3d 163,
166 (1st Dept. 2005) (fraud claim dismissed because plaintiff failed to plead specific factual
allegations beyond merely reciting the elements of fraud); 107 Realty Corp. v. National
Petroleum U.S.A., Ltd., 181 A.D.2d 817, 818 (2d Dept. 1992) (the allegations are stated in
vague and conclusory terms, and are insufficient to meet the pleading requirements set forth in
20
CPLR 3016(b)); Megaris Furs v. Gimbel Bros., 172 A.D.2d 209 (1st Dept. 1991) (dismissal
warranted when plaintiff fails to plead specific factual allegations for each element of fraud);
Cora v. Spanish Naturopath Society, Inc., 168 A.D.2d 535 (2d Dept. 1990) (fraud claim
dismissed because the pleading did not contain factual assertions from which it may be inferred
that the alleged representations were known by the defendants to be false at the time they were
made).
Even the Plaintiffs claim that a fine was imposed to reduce plaintiffs' profit and was
part of a systematic conscious and intentional effort by defendants to force plaintiffs to sell their
units. (Ex. A, Complaint 127, see also, 218), is contradicted by their allegation that
plaintiffs were approached by several other unit owners who were not happy with the
defendants and their management of the building. (Id., 70; see also, 151, 244). This second
narrative indicates that many unit owners had varying opinions of the BOMs decision, but the
BOM was not vindictive or singling out the Plaintiffs. The Plaintiffs disagreement with the
BOM was actually resolved at an election of the unit owners, an election that the Plaintiffs lost.
The vague conclusory allegations in the 15th Claim allege that the Plaintiffs tenants were
harassed with libelous posts without identifying the alleged defamer(s), the individuals being
defamed, or even the content of the posts, which is patently deficient and makes such a cause of
Notably, the 20th Claim contains no specificity with regard to any intentional infliction or
The bottom line is that when a Complaint attempts to set out claims that require a
21
showing of the defendants malign intent, factual detail is required. It is not enough to
conclusorily allege that defendants acted in breach of a fiduciary duty, or in a fraudulent way.
POINT VI
The 3rd and 5th Claims demand (inter alia) the return of rental/application fees collected,
which duplicate the 1st, 2nd, and 4th Claims demanding the return of individual rental/application
fees. Similarly, the 17th Claim demands the Defendants refrain from fines, fees, and policies that
deleteriously affect the Plaintiffs, and demands an injunction duplicative of the 3rd and 5th
It is well-settled that once a contractual relationship was entered into between the
parties, the contract defined the scope of the duties owed to the plaintiff, and, without a special
relationship out of which a separate and distinct legal duty sprang, the plaintiff cannot maintain a
separate tort cause of action. Vought v. Teachers College, Columbia University, 127 A.D.2d
654 (2d Dept. 1987). Therefore, the courts will dismiss tort claims that are merely duplicative of
claims for breach of contract; i.e., when the claim is based on the same underlying facts or where
the damages sought are the same. See, e.g., Tiffany at Westbury Development v. Marelli
Development Corp., 40 A.D.3d 1073 (2d Dept. 2007) (A cause of action alleging fraud does not
lie where the only fraud claim relates to a breach of contract); Pollak v. Moore, 85 A.D.3d 578,
579 (1st Dept. 2011) (Plaintiff's alternative claims sounding in breach of fiduciary duty, fraud,
fraud in the inducement and negligent misrepresentation were duplicative of his breach of
contract claims and, as such, properly dismissed.) (citations omitted); Veritas Capital Mgmt.
22
L.L.C. v. Campbell, 22 Misc. 3d 1107(A) (S.Ct. N.Y. Co. 2008) (Plaintiffs fraudulent
inducement claim, here, simply duplicates and is based on the identical facts as the breach of
contract claims. It alleges no independent facts sufficient to give rise to tort liability.) (internal
citations omitted). Plaintiffs 18th Claim for breach of contract is therefore duplicative of all the
prior causes of action. Accordingly, Plaintiffs prior claims demanding sums (Claims # 1, 2, 3, 4,
5, 10, 15, 16 should be dismissed (or in the alternative, the 18th Claim should be dismissed).
It is also well-settled that a claim for breach of fiduciary duty will not stand when it is
duplicative of a claim for breach of contract. Hylan Electrical Contracting, Inc. v. MasTec North
America, Inc., 74 A.D.2d 1148 (2d Dept. 2010) (dismissing cause of action for breach of
fiduciary duty as duplicative of claim for breach of contract); Kaminsky v. FSP Inc., 5 A.D.3d
Thus, the 19th and 21st Claims for breach of fiduciary duty should be dismissed.
23
CONCLUSION
CPLR 3211, dismissing the complaint should be granted, and the Defendants be afforded costs,
attorneys fees, and such other and further relief as the Court may deem just and equitable.
~ ~ {<--<._
Jaco&taufer, Esq. P
Mark Ellis, Esq.
65 Broadway, Suite 1005
New York, New York 10006
(212) 422-8500
Attorneys for Defendants The 47-55 39111 Place
Condominium, Raymond Chan, Haresh Kumar
Joshi, Neal Milano, Dastagir Hossain, and Samir
Joshi
To:
Clerk of the Court
24