Opinion
T 3778/10.
Decided June 16, 2010.
GALLET DREYER BERKEY LLP, Attorneys for Petitioner, By: BEATRICE LESSER, ESQ., New York, New York.
FOUAD ELSHIEKH, DEBORAH ELSHIEKH, Respondents — Pro Se, Jackson Heights, New York.
This summary holdover proceeding was commenced by 76TH STREET OWNERS' CORP (Petitioner) and seeks to recover possession of Apartment 227 at 35-36 76TH STREET JACKSON HEIGHTS, NEW YORK 11372 (Subject Premises) based on the allegation that FOUAD ELSHIEKH and DEBORAH ELSHIEKH (Respondents) are the proprietary lessees of record for the Subject Premises, and that their tenancy has been terminated by a vote of the Board of Directors in accordance with the proprietary lease.
PROCEDURAL HISTORY
On or about June 2, 2009, counsel for Petitioner sent Respondents' a letter detailing Petitioner's allegations of Respondents' breaches under the proprietary lease. The letter provided that it was being issued in accordance with paragraph 31 of the proprietary lease between the parties, and asserted that Respondents had engaged in "objectionable" conduct, and that unless such conduct ceased, the Cooperative's Board of Directors (Board) would call a meeting for the purposes of terminating Respondents' tenancy. The objectionable conduct alleged related to disputes over who's responsibility repairs were, failure of Respondents' to provide access, antisocial behavior by Respondents towards Board members, alleged actions interfering with the operation of Petitioner and the Board, and other breaches detailed.
The letter provided that in order to cure Respondents were required to provide daily access from June 19, 2009 at 9 am forward as needed, cure outstanding HPD violations, cooperate in the installation of the building wide intercom, provide daily access from July 16, 2009 forward as needed, pay sums associated with HPD fines or work done by Petitioner in curing violations, pay arrears by July 10, 2009, and timely pay maintenance thereafter, and other wise cease and refrain from any objectionable conduct. The notice was mailed on June 2, 2009 to Respondents at the Subject Premises by certified mail and ordinary mail.
On July 31, 2009, Respondents were sent a letter from Petitioner's counsel advising that based on their failure to cure in accordance with the June 2, 2009 letter, a special meeting of the Board had been scheduled for August 18, 2009 to consider termination of Respondents' lease. Respondents were advised that they could attend and bring an attorney, and that they would be provided an opportunity to address the Board on the issues related to the proposal to terminate. A notice of a special meeting of the Board of Directors for said purpose was also issued by the Board president Ed Martinez on July 31, 2009.
Petitioner's counsel sent Respondents another letter dated August 11, 2009, changing the date of the Special meeting from August 18, 2009 to September 1, 2009. This letter was also sent via email to the President and Vice President of the Coop Board, and to Regina Marotti.
On September 1, 2009, the five members of the Board and Petitioner's counsel were present at the special meeting. A stenographer was also in attendance. As of 7:20 pm, Respondents did not appear at the meeting and the Board voted unanimously to terminate Respondents' lease.
On September 3, 2009, Petitioner's counsel issued another letter advising Respondents that at the special meeting which took place on September 1, 2009, the Board voted that the Respondents' tenancy was objectionable and that Respondents had engaged in undesirable conduct, that pursuant to the September 3, 2009 letter, Respondents' tenancy was terminated effective September 30, 2009.
The notice of petition and petition were issued on October 27, 2009, and filed with the clerk on October 29, 2009. Annexed thereto is an affidavit of service indicating service was made by conspicuous place delivery with an attempt on November 2, 2009 at 7:25 pm, and a subsequent attempt and delivery on November 4, 2009 at 2:40 pm, with a mailing on November 5, 2009.
The proceeding was originally returnable in Part B in Queens County under Index Number 80573/09, and was adjourned to January 11, 2010 for motion practice. On January 11, 2010 it was transferred by Judge Katz from Queens County to Bronx County, because one of the Respondents works as an interpreter for the Office of Court Administration.
Petitioner made a motion for summary judgment, and Respondents submitted papers that were filed in response to the petition and the motion, seeking dismissal of the proceeding. On April 12, 2010, after both parties had been given a chance to make additional submissions, Petitioner's motion for summary judgment and Respondent's motion for dismissal were marked submitted, and the Court reserved. The Court also directed that Respondent pay ongoing use and occupancy, which order was issued on consent.
While the Court was reviewing the parties' submissions it came to the Court's attention that Petitioner had failed to annex two pages to the moving papers. The first missing page was part of the table of contents for Petitioner's by-laws annexed as Exhbit 13 to Petitioner's moving papers. The other page was Exhbit 7 to Petitioner's moving papers, and was the notice to Respondents that the special meeting had been adjourned. Additionally, Petitioner made a motion regarding Respondents' alleged failure to pay use and occupancy, returnable on June 1, 2010.
The Court therefore issued an order dated May 21, 2010, restoring the submitted motions to the calendar on June 1st, 2010, to provide both parties with an additional opportunity to submit any necessary additional documentation.
On June 1, 2010, the Court heard oral argument and reserved decision on all three pending motions. Later that day Petitioner's motion for relief based on Respondents' alleged default in failing to pay use and occupancy was denied per written decision and order. The remaining issues before the Court are Petitioner's motion for summary judgment and Respondents' motion to dismiss.
DISCUSSION
The business judgment rule has been held to be the proper standard of review when the decision of a cooperative corporation comes before a court for review ( Matter of Levandusky 75 NY2d 530). In 40 West 67th Street v. Pullman ( 100 NY2d 147), the Court of Appeals extended the holding in Levandusky, and ruled that where a cooperative board acts for the purposes of the corporation, within the scope of its authority, and in good faith, no further competent evidence of a shareholder-tenant's objectionable conduct must be provided to the Court, in a summary proceeding pursuant to 711(1). The Court reasoned that under the business judgment rule, courts should defer to the cooperative board's determination that the conduct is objectionable ( Id).
Pullman was a case where shareholders unanimously voted on the termination of the shareholder's tenancy. However, the holding has been held to apply to terminations by vote of the board, rather than the shareholders, as long as such procedure is provided for in the relevant proprietary lease and by laws ( see eg Trump Plaza Owners, Inc. v. Weitzner 47 AD3d 525 ).
In this case, Petitioner followed the procedures provided for in the by laws and proprietary lease for the termination of Respondents' tenancy. In evaluating whether Petitioner's termination complied with the three prong test established by Pullman, the Court finds that Petitioner acted within the scope of its authority, that the method of termination was provided for in the proprietary lease governing the parties' relationship and that the Board actions were in accordance with the proprietary lease and the by laws.
Similarly, Petitioner has established in its moving papers that the actions taken by the Board were in good faith and to further a legitimate corporate purpose. The alleged behavior was detrimental to other shareholders. Respondents are alleged to have failed to maintain the Subject Premises in accordance with their proprietary lease obligations, then cause violations to be placed on the Subject Premises, negatively impacting the other shareholders in the building. Similarly, Respondents are alleged to have interfered with the running of the building by failing to cooperate in the installation of a new building wide intercom, communicating in a hostile and antisocial manner, and interfering with the functions of the board such as the proper conduct of elections.
Thus, Petitioner has made a prima facie showing of entitlement to judgment.
Respondents make several claims in their motion to dismiss and opposition papers. Respondents assert that Petitioner's actions are based on a discriminatory motive, because Respondent Fouad Elshiekh is Muslim and an Arab American. Respondents assert that the Board has acted improperly and failed to make necessary repairs in the Subject Premises, that the papers were not properly served in this proceeding, and that the pleadings are defective because the authorization annexed was improper.
As Petitioner has made a prima facie showing that the Board's actions satisfy the three prong test in Pullman, the burden shifts to Respondents to offer proof of unlawful discrimination or their other allegations sufficient to raise a triable issue of material fact ( Pelton v. 77 Park Ave. Condominium 38 AD3d 1 [First Dept 2006]).
Respondents allege that Petitioner has breached its obligations under the warranty of habitability, and assert a claim for an abatement. Generally, an allegation regarding a breach of warranty of habitability is not a defense to a claim of possession in a holdover proceeding ( Blumenthal v. Chwast 2003 NY Slip Op 50029[U][App Term 1st Dept]; Goethals Mobile park Inc. v. Staten Island Meadowbrook Park Civic Assn Inc 208 AD2d 896 [2nd Dept 1994]). In this case, repair issues were resolved in an HP proceeding, Index No 6011/10, between the parties. A review of the violations placed pursuant to the February 2010 inspection conducted in conjunction with the HP proceeding establish that the repairs complained of were primarily the responsibility of Respondents ( see eg violations report at http://167.153.4.71/hpdonline/select_applications.aspx; and paragraph 18(a) of proprietary lease annexed as Exhibit 6), other than the intercom system, which Respondents refused to allow Petitioner access to complete (Exhibits D E).
Regarding Respondents' claim of improper service the Court finds that the affidavits of service filed by Petitioner are sufficient on their face. Respondents have submitted no sworn statement specifically alleging service was improper and in fact acknowledge receipt of the petition herein. The last paragraph of Respondents' answer admits receipt of the petition on the floor of the Subject Premises "less than 8 days before the court date 11/12/09." The Court notes that this essentially corroborates the affidavit of service for the petition asserting service was made by conspicuous place delivery on November 4, 2009.
Similarly, Respondents' allegations that the Board has improperly managed the financial affairs of the building or that Mr. Elshiekh was wrongfully prevented from running in an election are only conclusory allegations unsupported by any corroborative evidence.
Taken as a whole, Respondents' conclusory allegations are insufficient to defeat Petitioner's motion for summary judgment. In order to trigger further judicial scrutiny Respondents must raise sufficient facts regarding the Board's fraud, self-dealing or other alleged misconduct ( Pullman at 155). Respondents have failed to show that there has been any retaliatory or selective enforcement of obligations under their proprietary lease, and have only provided conclusory, unsupported and self serving allegation and conjecture. These allegations are insufficient to raise any triable issues of fact ( 111 Tenants Corp. v. Stromberg 168 Misc 2d 1014).
Finally, Respondents assert that the June 2, 2009 Notice to Cure was invalid because it was issued by counsel for Petitioner and the authorization that was annexed was signed by the president of the Board in May 2008, and that such individual was no longer President in June 2009, when the notice was issued. Petitioner replies that the authorization was valid when executed and that the authorization has never been revoked or modified by the Board.
The Court finds that the authorization was valid at the time it was executed by the President of the board and that by its own terms the authorization was valid going forward after the date of execution. Respondents do not assert that the authorization was ever revoked or modified and the Court finds that it was sufficient indica of Petitioners's counsel's authority to act to support the predicate notice.
The Court has considered Respondents' remaining contentions and finds them without merit.
Based on the forgoing, Petitioner's motion for summary judgment is granted, and Respondents' cross-motion for dismissal is denied. Petitioner is awarded a final judgment of possession against Respondents. The warrant of eviction shall issue forthwith. Petitioner's request for a hearing to determine the amount of attorneys' fees' and use and occupancy due is granted. The hearing shall take place on July 15, 2010 at 2:15 pm in Part B.
This constitutes the decision and order of this Court.