Fuisz v. 6 E. 72Nd St. Corp.

• Decision Date: 23 March 2022
• Docket Number: 2022-30973,Index 153622/2012,590523/2013
• Parties: BEVERLY FUISZ, individually and as Executor of the ESTATE OF ROBERT FUISZ, Plaintiff, v. 6 EAST 72ND STREET CORPORATION, BOARD OF DIRECTORS OF 6 EAST 72ND STREET CORPORATION, JOSEPH K. BLUM CO., LLP, JAMES J. BLUM, GUMLEY HAFT, INC., and MYRNA RONSON, Defendants. MYRNA RONSON, Third-Party Plaintiff, v. UBERTO LTD., Third-Party Defendant. Motion Seq. Nos. 012, 013, 014
• Court: United States State Supreme Court (New York)

BEVERLY FUISZ, individually and as Executor of the ESTATE OF ROBERT FUISZ, Plaintiff,
v.
6 EAST 72ND STREET CORPORATION, BOARD OF DIRECTORS OF 6 EAST 72ND STREET CORPORATION, JOSEPH K. BLUM CO., LLP, JAMES J. BLUM, GUMLEY HAFT, INC., and MYRNA RONSON, Defendants.

MYRNA RONSON, Third-Party Plaintiff,
v.
UBERTO LTD., Third-Party Defendant.

Motion Seq. Nos. 012, 013, 014

No. 2022-30973

Index Nos. 153622/2012, 590523/2013

Supreme Court, New York County

March 23, 2022

Unpublished Opinion

MOTION DECISION

MOTION DATE 08/24/2021, 08/24/2021, 08/24/2021

DECISION + ORDER ON MOTION

KELLY O'NEILL LEVY, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 012) 326, 327, 328, 329, 330, 331, 332, 333, 334, 335, 336, 337, 338, 339, 340, 341, 342, 343, 344, 345, 346, 347, 348, 349, 350, 351, 352, 353, 354, 355, 356, 357, 358, 359, 360, 361, 362, 363, 364, 365, 366, 367, 368, 369, 370, 371, 372, 373, 374, 375, 376, 377, 378, 379, 501, 522, 523, 524, 525, 526, 527, 528, 529, 530, 531, 532, 533, 534, 535, 536, 537. 538, 539, 540, 541, 542, 543, 609, 610, 611, 653, 654, 655, 656, 657, 658, 659, 660, 661, 662, 663, 664, 665, 666, 667, 668, 669, 670, 671, 672, 673, 674, 675, 676, 677, 678, 679, 680, 681, 682, 683, 684, 685, 686, 687, 688, 689, 708, 709, 734, 735, 736, 812, 813, 814, 816 were read on this motion for SUMMARY JUDGMENT.

The following e-filed documents, listed by NYSCEF document number (Motion 013) 431, 432, 433, 434, 435, 436, 437, 438, 439, 440, 441, 442, 443, 444, 445, 446, 447, 448, 449, 450, 451, 452, 453, 454, 455, 456, 457, 458, 459, 460, 461, 462, 463, 464, 465, 466, 467, 468, 469, 470, 471, 472, 473, 474, 475, 476, 477, 478, 479, 480, 481, 482, 483, 484, 485, 486, 487, 488, 489, 490, 491, 492, 493, 494, 495, 496, 497, 498, 499, 500, 502, 544, 545, 546, 547, 548, 549, 550, 551, 552, 553, 554, 555, 556, 557, 558, 559, 560, 561, 562, 563, 564, 566, 567, 568, 569, 570, 571, 572, 573, 574, 575, 576, 577, 578, 579, 580, 581, 582, 583, 584, 585, 586, 587, 588, 589, 590, 591, 592, 593, 594, 595, 596, 597, 598, 599, 600, 601, 602, 603, 612, 613, 614, 615, 616, 617, 618, 619, 620, 621, 622, 623, 624, 625, 626, 627, 628, 629, 630, 631, 632, 633, 634, 635, 636, 637, 638, 639, 640, 641, 642, 643, 644, 645, 646, 647, 648, 649, 650, 651, 652, 711, 712, 713, 714, 715, 716, 717, 718, 719, 720, 721, 722, 723, 724, 725, 726, 727, 728, 729, 730, 731, 732, 733, 737, 738, 739, 740, 741, 742, 743, 744, 745, 746, 747, 748, 749, 750, 751, 752, 753, 754, 755, 756,

1

757, 758, 759, 760, 761, 762, 763, 764, 765, 766, 767, 768, 769, 770, 771, 772, 773, 774, 775, 776, 777, 778, 779, 780, 781, 782, 783, 784, 785, 786, 787, 788, 789, 790, 791, 792, 793, 794, 795, 796, 797, 798, 799, 800, 807 were read on this motion for SUMMARY JUDGMENT.

The following e-filed documents, listed by NYSCEF document number (Motion 014) 380, 381, 382, 383, 384, 385, 386, 387, 388, 389, 390, 391, 392, 393, 394, 395, 396, 397, 398, 399, 400, 401, 402, 403, 404, 405, 406, 407, 408, 409, 410, 411, 412, 413, 414, 415, 416, 417, 418, 419, 420, 421, 422, 423, 424, 425, 426, 427, 428, 429, 430, 503, 504, 505, 506, 507, 508, 509, 510, 511, 512, 513, 514, 515, 516, 517, 518, 519, 520, 521, 604, 605, 606, 607, 608, 690, 691, 692, 693, 694, 695, 696, 697, 698, 699, 700, 701, 702, 703, 704, 705, 706, 707, 710, 801, 802, 803, 804, 805, 806, 808, 809, 810, 811 were read on this motion for SUMMARY JUDGMENT.

KELLY O'NEILL LEVY, J.:

Motion sequence numbers 012, 013, and 014 are consolidated for disposition.

This is an action seeking specific performance and to recover money damages for property damage. Plaintiff Beverly Fuisz, a shareholder in the residential cooperative building located at 6 East 72^nd Street, New York, New York (the building), brings this action alleging that her apartment suffered property damage from vibrations and water leaks during a renovation project undertaken by her upstairs neighbor, Myrna Ronson (Ronson).

Defendants Joseph K. Blum Co., LLP and James J. Blum (together, the Blum defendants) move, pursuant to CPLR 3212, for summary judgment dismissing the amended complaint and all cross claims and counterclaims asserted against them. Alternatively, the Blum defendants seek summary judgment on certain affirmative defenses asserted in their answer to the amended complaint (motion sequence number 012).

Plaintiff moves, pursuant to CPLR 3212, for: (1) summary judgment as to liability on her breach of contract claim against defendants Ronson, 6 East 72^nd Street Corporation (the Coop), and the Board of Directors of 6 East 72^nd Street Corporation (the Board); (2) summary judgment dismissing the tenth affirmative defense concerning the business judgment rule asserted by the

2

Coop, the Board, and Gumley Haft, Inc. (Gumley Haft) (collectively, the Coop defendants); (3) summary judgment seeking specific performance of Ronson's alteration agreement; (4) summary judgment as to liability against the Coop for breach of the implied warranty of habitability, partial constructive eviction, and breach of the covenant of quiet enjoyment; (5) summary judgment as to liability on her negligence claim against Ronson; and (6) summary judgment as to liability on her nuisance and conversion claims against the Coop and Ronson (motion sequence number 013).

The Coop defendants cross-move, pursuant to CPLR 3212, for summary judgment dismissing the amended complaint in its entirety. In addition, the Coop defendants seek summary judgment on their cross claim for contractual indemnification against Ronson.

Ronson moves, pursuant to CPLR 3212, for: (1) summary judgment dismissing plaintiffs breach of contract, specific performance, nuisance, negligence, and conversion claims; (2) summary judgment dismissing plaintiffs request for punitive damages; (3) summary judgment dismissing all cross claims and counterclaims against her; and (4) summary judgment on her third-party claim for contractual indemnification against third-party defendant Uberto Ltd. (Uberto) (motion sequence number 014).

BACKGROUND

The following facts are undisputed unless otherwise noted. Plaintiff is a shareholder of the Coop and a holder of the proprietary lease for the apartment known as the "West Maisonette," a duplex located on the first and second floors of the building (NY St Cts Elec Filing [NYSCEF] Doc No. 432 ¶1). Gumley Haft was the managing agent during the relevant period (NYSCEF Doc No. 570 ¶ 8). In May 2008, Ronson became a shareholder of the Coop and a holder of the proprietary lease for Apartment 3/4B, a duplex located on the third and fourth

3

floors of the Coop (NYSCEF Doc No. 432 ¶ 2). In May 2009, Ronson signed an alteration agreement and undertook a renovation of her apartment (id. ¶ 5). Ronson hired Uberto as her contractor for the project (id. ¶ 7).

Rider 5 of the alteration agreement states that no "wet-over-dry" or "noisy-over-quiet" installations can be made without the "express written consent" of the Coop (id. ¶ 8). In addition, rider 9 provides no "enlargement of existing bathrooms" can be made without the "specific prior written approval" of the Coop (id. ¶ 9). Plaintiff alleges that Ronson installed a new powder room, a new laundry room, and an expanded maid's bathroom on the third floor that were all above plaintiffs bedrooms (id. ¶¶ 10, 13, 16). According to plaintiff, the Coop never issued "express written consent" or "specific prior written approval" for the new powder room, laundry room or the expanded maid's bathroom (id. ¶¶ 20-23).

James J. Blum (Blum), the principal of Joseph K. Blum Co., LLP and a licensed professional engineer, avers that Joseph K. Blum Co., LLP provided consulting engineering services to the building from 1988 through 2016 (NYSCEF Doc No. 360, Blum aff, ¶ 2). The Board retained the Blum defendants to review Ronson's architect's plans (id., ¶¶ 6-7). By letter dated April 28, 2009, Blum recommended that the Board approve the project, in which he noted, among other things, that the rooms were being renovated without changing the basic layout (id.).

Plaintiff asserts that, in June 2009, vibrations and shaking from Ronson's renovation project damaged her apartment (NYSCEF Doc No. 4321 24). According to plaintiff, Uberto chopped a concrete slab in Ronson's apartment on the third floor of the building (id. ¶ 25). Rider 5 of the alteration agreement states that there shall be "no removals of floor slab materials" and no "structural slabs, demising walls or floor slabs may be channeled or cut" (id. ¶ 27).

4

On August 4, 2009, there was a leak into plaintiffs apartment, which plaintiff alleges was caused when Uberto cracked a water pipe (id. ¶ 30). On January 4, 2010, there was a second leak into plaintiffs apartment, which was allegedly caused when Uberto punctured a steam pipe with a nail or screw (id. ¶ 32). On April 16, 2010, there was a third leak into plaintiffs apartment, which plaintiff claims was caused when Uberto turned on a water line (id. ¶ 34).

Plaintiff commenced this action by filing a summons with notice on June 12, 2012 (NYSCEF Doc No. 1). The amended complaint, filed on March 5, 2013, asserts the following claims: (1) breach of contract against the Coop, the Board, and Ronson; (2) breach of the implied warranty of habitability against the Coop; (3) partial constructive eviction against the Coop; (4) breach of the covenant of quiet enjoyment against the Coop; (5) negligence against all defendants; (6) breach of fiduciary duty against the Board; (7) aiding and abetting a breach of fiduciary duty against the Blum defendants and Gumley Haft; (8) tortious interference with contract against the Board, the Blum defendants, and Gumley Haft; (9) specific performance against the Coop, the Board, and Ronson; (10) nuisance against all defendants; (11) conversion against the Coop, the Board, and Ronson; and (12) aiding and abetting conversion against the Blum...