Opinion
600661/07.
March 4, 2009.
This case stems from a dispute over condominium unit 2C (the unit) at Windsor Park Condominium (the condominium), located at 100 West 58th Street, New York, New York 10019 (the building), between the purchaser of the unit, plaintiff Sarah Schottenstein and the sponsor of the condominium conversion, defendant Windsor Tov LLC (Windsor Tov); the manager of the building, defendant Bellmarc Property Management Services, Inc. (Bellmarc) and the broker for the sale of the unit, defendant Douglas Elliman, LLC (Douglas Elliman) (collectively, defendants).
Plaintiff also commenced a related action against the condominium's Board of Managers, Schottenstein v Bd. of Mgrs. of Windsor Park Condominium, Index No. 106555/2008, Sup Ct, NY County.
In her seven-count Second Supplemental and Amended Complaint (the Complaint), plaintiff alleges that after closing on the unit, she discovered numerous defects in it, as well as throughout the building, in violation of the representations made by Windsor Tov orally and in its Offering Plan and By-Laws. Accordingly, plaintiff seeks (1) money damages, (2) a judgment rescinding the sale and directing return of the security deposit, purchase price and closing costs, (3) an injunction requiring defendants to repair defects in the unit, and (4) an injunction requiring Windsor Tov and Bellmarc to permit inspection of their books and records maintained with respect to the building.
Previously, in motion sequence number 003, Douglas Elliman moved to dismiss the Complaint. Plaintiff stipulated to withdraw her claims as against Douglas Elliman.
In this motion, Windsor Tov moves, pursuant to CPLR 3211 (a) (1), (3), and (7), to dismiss the Complaint, or in the alternative, pursuant to CPLR 3016 (b), to dismiss the third cause of action for failure to plead the alleged misrepresentation and fraud with particularity, or in the alternative, pursuant to CPLR 3013, to compel plaintiff to set forth with specificity the facts giving rise to her claims.
BACKGROUND
On or about August 8, 2005, plaintiff and Windsor Tov entered into a purchase agreement (the Purchase Agreement) for the purchase of the unit for $ 1,646,000.00. The Purchase Agreement incorporates by reference the Offering Plan for the Condominium, dated November 19, 2004 (the Offering Plan). The affairs of the condominium are governed by the By-Laws (the By-Laws).
In the Complaint, plaintiff alleges that, prior to closing, defendants prevented her from properly inspecting the unit and informed her that the unit was not ready for the final walk-through. Plaintiff alleges that she was not willing to close but that defendants allegedly threatened her with penalties, including the loss of her security deposit, and, on or about March 27, 2006, plaintiff closed on the unit.
After she moved in, plaintiff claims that she discovered various defects in the unit and throughout the building, including water infiltration, with resulting damage, including mold; malfunctioning ventilation, exhaust, and air-conditioning systems; and absence of individual electric metering for the unit ( id.,¶ 28). Plaintiff alleges that she gave notice to defendants of the defects. Plaintiff asserts that she hired an environmental inspection company to conduct a microbiological indoor air quality assessment, which allegedly revealed that her entire unit required mold remediation ( id., ¶¶ 30-31). Plaintiff claims that defendants failed to (a) disclose the existence of these defects and (b) repair them. As a result, plaintiff alleges that she sustained monetary damages and that the unit has been rendered uninhabitable.
Based on these factual allegations, plaintiff pleads seven causes of action: (1) breach of contract, specifically breach of the Offering Plan and By-Laws, seeking money damages; (2) breach of both express and implied warranties, seeking money damages; (3) fraud, seeking money damages; (4) rescission of the sale of the unit and seeking the return of the security deposit, purchase price, and closing costs; (5) breach of fiduciary duty to maintain the building and the unit in proper condition by Windsor Tov, based upon Windsor Tov's control of the board of managers of the building, seeking monetary damages; (6) an injunction directing defendants to repair defects in the unit and the building; and (7) an injunction directing Windsor Tov and Bellmarc to produce for inspection relevant books and records.
Windsor Tov now moves to dismiss the Complaint.
DISCUSSION
On a motion to dismiss, pursuant to CPLR 3211, the Court must construe the pleading liberally, assume the facts alleged as true, and give claimant "every possible favorable inference" ( Leon v Martinez, 84 NY2d 83, 87; see also CPLR 3026). The Court must "determine only whether the facts as alleged fit within any cognizable legal theory" ( see Leon, 84 NY2d at 87-88; see also Goldman v Metropolitan Life Ins. Co., 5 NY3d 561, 570-571 [2005]). Defects are "ignored if a substantial right of a party is not prejudiced" (CPLR 3026). A motion to dismiss, pursuant to CPLR 3211 (a) (1), "may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326).
"In assessing a motion under CPLR 3211 (a) (7), . . . the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one" ( Leon, 84 NY2d at 88 [citations and internal quotation marks omitted]).
First Cause of Action
Windsor Tov argues that, in her first cause of action, for breach of contract, plaintiff failed to specify the exact representations and contractual provisions that Windsor Tov allegedly breached.
Pursuant to CPLR 3013, statements in a complaint should be particular enough to provide notice of (a) transactions plaintiff intends to prove and of (b) "the material elements of each cause of action. . . ." To satisfy the requirements of CPLR 3013, a plaintiff alleging a breach of contract needs to state "the nature of the contractual obligation alleged to have been violated, the approximate date of the contract, [and] the nature of the claimed breach" ( see e.g. Sebro Packaging Corp. v S. T. S. Indus., 93 AD2d 785, 785 [1st Dept 1983]).
In the Complaint, plaintiff alleges that on or about August 8, 2005, she entered into a contract with Windsor Tov to purchase the unit for $1,646,000.00, which she paid at closing. This contract is the Purchase Agreement, a copy of which Windsor Tov provides ( see Horowitz Aff., dated 06/06/08 [Horowitz Aff. I] exhibit B). The Purchase Agreement incorporates the Offering Plan and By-Laws ( see id.). Plaintiff alleges that one of the defendants' contractual obligations was to maintain and repair the building and the unit in a condition that is specified in the Offering Plan and By-Laws ( see Complaint, ¶¶ 27, 38-40). Although Windsor Tov is correct that plaintiff does not point to a specific provision of the Offering Plan and By-Laws alleged to have been violated, she describes in sufficient detail the nature of Windsor Tov's assumed contractual obligation, i.e., to maintain the unit and the Building in a proper condition.
Additionally, Windsor Tov itself offers an excerpt of the Offering Plan, which clarifies the nature of its contractual obligation. Specifically, the Offering Plan obligates Windsor Tov to
perform such work and supply such materials . . . as is necessary in order to complete the rehabilitation of the Building with a quality of construction comparable to the currently prevailing local standards and substantially in accordance with the Plans and Specifications for the construction work filed with the Building Department and other appropriate governmental authorities
(Horowitz Aff. I, exhibit B, Rights and Obligations of Sponsor, ¶ d). Windsor Tov is further obligated to
correct . . . any and all defects relating to construction of the Building, or in the installation or operation of any appliances, fixtures, or equipment in a Unit or the Common Elements . . . but only if [] such defects are due to substantially improper workmanship or construction practices or the use of materials that are substantially and materially at variance with the Plans and Specifications for the same . . .
( see id., ¶ m).
Plaintiff alleges that defendants breached their contractual obligations in that they delivered the unit to her riddled with numerous defects, including water infiltration into and out of the unit and resultant mold, as well as malfunctioning air conditioning and ventilation systems ( see Complaint, ¶¶ 28, 41). Plaintiff alleges that she gave notice to Windsor Tov of the defects and that Windsor Tov failed to correct them ( id., ¶¶ 29, 34, 35, 43, 44). Accordingly, the Complaint meets the pleading requirements of CPLR 3013, in that plaintiff provided notice of both a transaction that she intends to prove and the material elements of a cause of action sounding in a breach of contract ( see e.g. Kraft v Sheridan, 134 AD2d 217, 218 [1st Dept 1987]).
The cases upon which Windsor Tov relies are inapposite. Unlike in 767 Third Avenue, LLC v Greble Finger, LLP ( 8 AD3d 75 [1st Dept 2004]) and in Muka v Greene County ( 101 AD2d 965 [3d Dept 1984]), plaintiff here sufficiently described the nature of Windsor Tov's assumed contractual obligation, and the record before the Court on this motion further reveals the nature of Windsor Tov's obligation.
At the same time, Windsor Tov is correct that, to the extent that plaintiff claims reliance on oral representations by Windsor Tov ( see e.g. Complaint, ¶¶ 14-15), such reliance is explicitly precluded by the Purchase Agreement ( see Horowitz Aff. I, exhibit D, ¶ 21). Accordingly, to the extent that plaintiff's claims are based on reliance on Windsor Tov's oral representations ( see Complaint ¶ 14), they are dismissed.
Damage to the Building's Common Elements
In its reply papers, Windsor Tov argues that plaintiff lacks standing to seek relief for damages to the common elements of the building. "[T]he function of a reply affidavit is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of the motion" ( see e.g. Ritt v Lenox Hill Hosp., 182 AD2d 560, 562 [1st Dept 1992]). If Windsor Tov's intention is to bar all of plaintiff's claims of damages to the common elements, then it should have raised the issue of standing in its moving papers, because plaintiff alleged damages to the building's common elements in the Complaint ( see Complaint, ¶ 28). Therefore, the Court will not consider the issue of standing at this time.
The Court notes that even if Windsor Tov had raised the issue of plaintiff's standing in its moving papers, plaintiff's claims would still not be precluded. Although, in general, an individual condominium unit owner lacks standing to assert such claims against a sponsor ( see e.g. Kerusa Co. LLC v W10Z/515 Real Estate Ltd. Partnership, 50 AD3d 503, 504 [1st Dept 2008]; Caprer v Nussbaum, 36 AD3d 176, 186 [2d Dept 2006]), here, Windsor Tov obligated itself to repair "defects relating to construction of the Building, or in the installation or operation of any appliances, fixtures, or equipment in a Unit or the Common Elements . . . ." (Offering Plan, ¶ m [emphasis added]). Plaintiff's claims regarding defects in the common elements are, therefore, specifically covered by the Offering Plan, and she gave written notice to Windsor Tov of the specific defects ( see Schottenstein Aff., exhibit 9, 06/12/06 and 10/03/06 letters). Furthermore, plaintiff's claims of water infiltration into and from her apartment, to the extent that they are related to defects in the building's common elements, are also not precluded, as they affect plaintiff's unit directly.
Plaintiff's Claims of Obvious Defects
Windsor Tov relies on the subsection L of the "Rights and Obligations of Sponsor" of the Offering Plan, which provides that each unit is sold on an "as is" basis, except for a list of incomplete items that the sponsor and a purchaser agree upon (Offering Plan, ¶ 1). Windsor Tov provides a copy of a so-called Punch List, which Windsor Tov claims contains only minor defects (Horowitz Aff. I, exhibit C). Therefore, Windsor Tov argues that plaintiff is barred from claiming any other defects in her Complaint ( see Complaint, ¶ 28).
At the same time, the Offering Plan obligates Windsor Tov to correct "any patent defect in the construction of an Unit" if a unit owner provides notice within three months of his or her occupancy of the unit and the defect is not caused by the unit owner (Offering Plan, ¶ m [2] [iii] [emphasis added]). Accordingly, pursuant to the Offering Plan, plaintiff can claim patent defects beyond those on the punch list, provided she gave timely notice ( see id).
The parties dispute whether the final walk-through took place. However, this argument is largely irrelevant, since Windsor Tov was obligated to repair any patent defects that plaintiff discovered during the first three months of her occupancy of the unit.
In the Complaint, plaintiff alleges the following defects that can be characterized as obvious or patent: improperly pitched shower floor, cracked kitchen sink drain pipe, misaligned front door, and problems with toilet flushing and "continually run[ning]" ( see Complaint, ¶ 28). Plaintiff closed on or about March 27, 2006, and on or about June 12, 2006 and October 3, 2006, she notified Windsor Tov in writing of the following defects: misaligned front door and improperly flushing and continually running toilets (Schottenstein Aff., exhibit 9). Accordingly, as plaintiff failed to provide proof that she gave timely notice to Windsor Tov of improperly pitched shower floor and a cracked kitchen sink drain pipe, she may not seek damages for these particular defects.
Plaintiff's Claims of Latent Defects
Windsor Tov further posits that plaintiff's claims of latent defects are barred by her failure to offer proof of her compliance with the requirement of subsection M of the "Rights and Obligations of Sponsor" of the Offering Plan, specifically, to provide notice of the defects by certified mail, return receipt requested (Horowitz Aff. I, exhibit B, Offering Plan, ¶ m).
The Court notes that Windsor Tov does not provide a full copy of the Offering Plan, and even the copy of the subsection, "Rights and Obligations of Sponsor," docs not appear to have been reproduced in its entirety ( see id.).
In opposition, plaintiff provides copies of two letters that she sent to Windsor Tov, dated June 12, 2006 and October 3, 2006, and a proof of mailing via Federal Express of the October 3, 2006 letter ( see Schottenstein Aff., exhibit 9). In both letters, plaintiff detailed various defects that she discovered in her unit and the building after she moved in, including problems with air conditioning and ventilation systems as well as water infiltration ( see id.). In reply, Windsor Tov does not deny receiving the letters. Accordingly, plaintiff is not barred from claiming latent defects in the Complaint.
Therefore, plaintiffs first cause of action, for a breach of contract, is sustained, except to the extent that it is based upon plaintiff's reliance on Windsor Tov's oral representations, and those claims based on the improperly pitched shower floor and a cracked kitchen sink drain pipe are dismissed.
Second Cause of Action
Windsor Tov contends that plaintiff's second cause of action, for breach of warranty, is duplicative of her first cause of action. Additionally, Windsor Tov contends that plaintiff failed to specify the nature of warranties breached and, hence, failed to comply with CPLR 3013.
In the Complaint, plaintiff alleges that defendants made express and implied warranties with respect to the compliance of the building and the unit with the terms of the Offering Plan and By-Laws ( see id.,¶¶ 48-52). Subsection (m) of "Rights and Obligations of Sponsor" of the Offering Plan appears to be an express warranty given by Windsor Tov to plaintiff with respect to patent and latent defects ( see Horowitz Aff. I, exhibit B). Plaintiff alleges that defendants breached their warranties in that they failed to repair the defects in the building and unit ( see id). Accordingly, plaintiff states a valid cause of action sounding in a breach of an express warranty. Given that Windsor Tov's assumed obligations with respect to the condition of the building and the unit are not limited to the warranty in subsection (m) of the Offering Plan, plaintiffs first and second causes of action do not appear to be duplicative. Plaintiff, however, failed to show that Windsor Tov gave her any implied warranties. Therefore, the second cause of action, only to the extent that it sounds in a breach by Windsor Tov of an express warranty, survives.
Third Cause of Action
Plaintiff alleges that defendants knew or should have known that the Building and her unit did not comply with the terms of the Offering Plan and Bylaws (Complaint ¶ 55). Plaintiff alleges that, if she had known of the defects, she would not have entered into the contract of sale and/or closed on the property ( id. ¶ 56).
Insofar as this cause of action sounds in fraud, Windsor Tov argues that the Martin Act deprives plaintiff of standing to assert her third cause of action. Additionally, Windsor Tov claims that this cause of action is not pled with the required specificity, and the only fraud charged relates to the breach of contract.
As to the issue of standing, in Kramer v W10Z/515 Real Estate Ltd. Partnership ( 44 AD3d 457 [1st Dept 2007]), the First Department held that "the Martin Act does not bar plaintiffs' causes of action for common-law fraud" ( id. at 460).
The Appellate Division's decision in Kramer was appealed to and argued before the Court of Appeals on February 12, 2009, as Kerusa Co., LLC v W10Z/515 Real Estate Ltd. Partnership.
To plead a claim for common-law fraud, a plaintiff must assert the misrepresentation of a material fact, which was known by the defendant to be false and intended to be relied on when made, and that there was justifiable reliance and resulting injury ( see e.g. Kaufman v Cohen, 307 AD2d 113, 120 [1st Dept 2003], Gaidon v Guardian Life Ins. Co. of Am., 94 NY2d 330, 348). "[A] fraud cause of action may be predicated on acts of concealment where the defendant had a duty to disclose material information" ( Kaufman, 307 AD2d at 119-120). In pleading these elements, the plaintiff must comply with the requirements set forth in CPLR 3016 (b), namely that "the circumstances constituting the wrong shall be stated in detail." "[T]o meet such requirement a plaintiff need only provide sufficient detail to inform defendants of the substance of the claims" ( Kaufman, 307 AD2d at 120 quoting Bernstein v Kelso Co., 231 AD2d 314, 320 [quotation marks omitted]).
In the Complaint, plaintiff alleges that Windsor Tov and other defendants made representations to her regarding the condition of the building and the unit, including representations in the Offering Plan ( see Complaint, ¶¶ 13, 14). Plaintiff further alleges that defendants knew that the building and unit did not comply with the terms of the Offering Plan ( id., ¶ 55). She claims reliance on defendants' misrepresentations and resulting injury in the form of paying the purchase price for the unit riddled with defects ( id., ¶¶ 15, 22, 26-28, 57-58). Additionally, in opposition, plaintiff provides a copy of an engineering report by Goldstein Associates, PLLC, dated June 3, 2005 (the Goldstein Report) (Schottenstein Aff., exhibit 1). The Goldstein Report is based on the inspection of the parts of the walls of the building facing 58th Street, 6th Avenue, a courtyard, and the rear. It recommends replacement of, among other items, brick and bulging brick in many areas of the building, including areas on the third floor level, as well as repairing of damaged terracotta below the third floor windows along the southern and eastern elevation of the courtyard ( see id.). The report recommended that "[m]ortar joints should be re-pointed as necessary and bricks replaced in areas where bulging has occurred" ( id., Results of This Examination, ¶ 2 [b]). Accordingly, it appears that Windsor Tov was notified of the issue of loose brick at least several months before August 2005, when it and plaintiff entered into the Purchase Agreement. It therefore seems that Windsor Tov knew about the condition, yet failed to notify plaintiff about it and, apparently, failed to correct the situation, because the New York City Department of Buildings issued a violation in February 2007, stating that a piece of masonry fell off the building ( see Schottenstein Aff., exhibit 4). In the Complaint, plaintiff alleges water infiltration from outside, which may have been caused by loose brick and deteriorated pointing. In viewing plaintiff's allegations and documentary evidence liberally, as is required on this motion, plaintiff adequately pleads that Windsor Tov omitted disclosing a material fact, on which plaintiff justifiably relied and, as a result, was subsequently injured ( see Kaufman, 307 AD2d at 120). Additionally, plaintiff pleads that she could not have discovered the defects detailed in the Goldstein Report through the exercise of reasonable diligence ( cf. Rodas v Manitaras, 159 AD2d 341, 342-343 [1st Dept 1990]). Finally, the Goldstein Report is clearly not related to the Purchase Agreement, and, hence, plaintiff's claim is not a mere restatement of her breach of contract claim. Accordingly, plaintiff's cause of action sounding in fraudulent omission survives ( see Kramer, 44 AD3d at 460).
It is unclear who hired Goldstein Associates, PLLC. It would appear that the Goldstein Report was intended for Windsor Tov, because it is an inspection report to comply with New York City Local Law 11 of 1998, and it contains recommendations for the "owner," which the Goldstein Report identifies as Windsor Tov.
Fourth Cause of Action
Windsor Tov contends that plaintiffs fourth cause of action seeking rescission of the contract should be dismissed based on the doctrine of caveat emptor.
Caveat emptor is not so all-encompassing a doctrine of common law as to render every act of nondisclosure immune from redress, whether legal or equitable. . . . The doctrine of caveat emptor requires that a buyer act prudently to assess the fitness and value of his purchase and operates to bar the purchaser who fails to exercise due care from seeking the equitable remedy of rescission.
* * *
Where a condition which has been created by the seller materially impairs the value of the contract and is peculiarly within the knowledge of the seller or unlikely to be discovered by a prudent purchaser exercising due care with respect to the subject transaction, nondisclosure constitutes a basis for rescission as a matter of equity
( Stambovsky v Ackley, 169 AD2d 254, 259 [1st Dept 1991]). Here, as previously discussed, plaintiff alleges water infiltration from the outside, which may be caused by loose bricks in the outer walls of the building and deteriorated pointing, evidence of which apparently became known to Windsor Tov at the time it received the Goldstein report in 2005. Additionally, in the October 3, 2006 letter to Windsor Tov, plaintiff wrote that she discovered the existence of a history of water leaks from her unit into Windsor Pharmacy, located one floor below the unit, which was not disclosed to her before closing ( see Schottenstein Aff., exhibit 9). Accordingly, these material conditions were unlikely to have been discovered by plaintiff exercising due care. The conditions described in the Goldstein report seem to have been within Windsor Tov's knowledge; the leak into the pharmacy may have been known to Windsor Tov. Thus, the doctrine of caveat emptor does not apply to the circumstances alleged here ( see Stambovsky, 169 AD2d at 260-261 [1st Dept 1991]). Windsor Tov's motion to dismiss is therefore denied as to this cause of action.
Fifth Cause of Action
Plaintiff alleges that Windsor Tov owes a fiduciary duty to her to ensure proper maintenance of the building and the unit, because Windsor Tov "dominates the Board of Managers of the Building either through ownership of a sufficient number of units or simply by virtue of its position of control" (Complaint ¶ 64). Plaintiff alleges that she made demands upon Windsor Tov in its fiduciary capacity, but that it failed to act ( see Complaint, ¶¶ 64-69).
As a matter of law, a sponsor does not owe a fiduciary duty to the condominium unit owners ( see e.g. Caprer v Nussbaum, 36 AD3d at 191; cf. Board of Mgrs. of Acorn Ponds at N. Hills Condominium I v Long Pond Invs., 233 AD2d 472, 473 [2d Dept 19961). By contrast, "a fiduciary duty subsists between a condominium's initial, sponsor-appointed board of managers and the unit purchasers" ( Board of Mgrs v Fairway at N. Hills, 193 AD2d 322, 326 [2d Dept 1993]). Plaintiff may have intended to allege that the number of units that Windsor Tov owns entitled it to elect or appoint at least a majority of members to the condominium's Board of Managers. Even assuming that were true, the fiduciary duty would run between the Board of Managers and the unit owners, even if Windsor Tov had selected its members. Accordingly, this cause of action is dismissed.
Plaintiff is alleging breach of fiduciary duty against the Board of Managers in her related action against the Board of Managers.
Sixth and Seventh Causes of Action
Windsor Tov argues that plaintiff's sixth and seventh causes of action are not cognizable claims, since injunctions are merely forms of relief. In the sixth cause of action, plaintiff alleges that defendants were obligated to deliver, and maintain, the unit in a condition that complies with the terms of the Offering Plan, which they failed to do. Accordingly, plaintiff requests an injunction directing defendants to repair the defects in the unit and the building ( see Complaint, ¶¶ 71-75). It appears that plaintiff is seeking this form of relief based on Windsor Tov's continuing duty to maintain the building, which plaintiff alleges Windsor Tov has failed to do. As previously discussed, pursuant to the express warranty in the Offering Plan, Windsor Tov is obligated to "correct, repair, or replace any and all defects relating to construction of the Building, or in the installation or operation of any appliances, fixtures, or equipment in a Unit or the Common Elements . . ." ( see Horowitz Aff. I, exhibit B, § m). Although inartfully drafted, this cause of action is based on Windsor Tov's alleged violation of its contractual duty to repair defects in the unit and throughout the building, and is sustained. If plaintiff prevails on her claim, she would appear to be entitled to mandatory injunctive relief directing repairs. However, she would not be entitled to both recission and injunctive relief.
In her seventh cause of action, plaintiff alleges that, in accordance with the bylaws, the condominium is obligated to maintain accurate books and records of accounting regarding the finances of the building, and that she is entitled to inspect the books and records. Plaintiff believes that she has been billed for items which were the sponsor's responsibility, or otherwise not properly charged to her. Plaintiff alleges that she made demands upon Windsor Tov to enable her to inspect relevant books and records pertaining to the maintenance of the building, which Windsor Tov refused to do. Accordingly, plaintiff seeks an injunction directing Windsor Tov and Bellmarc to produce books and records pertaining to the maintenance of the building for inspection ( see Complaint, ¶¶ 77-82).
Contrary to defendants' argument, the seventh cause of action is not merely a prayer for relief denominated as a cause of action. Real Property Law § 339-w states,
The manager or board of managers, as the case may be shall keep detailed, accurate records, in chronological order, of the receipts and expenditures arising from the operation of the property. Such records and the vouchers authorizing the payments shall be available for examination by the unit owners at convenient hours of weekdays. A written report summarizing such receipts and expenditures shall be rendered by the board of managers to all unit owners at least once annually.
Thus, to the extent that plaintiff alleges that defendants have violated Real Property Law § 339-w and the condominium bylaws and seeks an order directing access to the condominium's books and records, plaintiff states a cause of action.
The Court has considered all the parties' other arguments and finds them without merit.
CONCLUSION
For the foregoing reasons, it is hereby
ORDERED that defendant Windsor Tov LLC's motion to dismiss the complaint is partially granted as follows:
(1) so much of the first cause of action that is based on defendants' alleged breach of verbal representations and on an improperly pitched shower floor and a cracked kitchen sink drain pipe are dismissed;
(2) so much of the second cause of action that alleges a breach of implied warranties is dismissed, and
(3) the fifth cause of action is dismissed,
and the motion is otherwise denied; and it is further
ORDERED that defendant Windsor Tov LLC is directed to serve an answer to the complaint within 30 days after service of a copy of this order with notice of entry.