Shomshonov v. Bd. of Managers of the Heights Condo.

• Citation: 2022 NY Slip Op 33112 (U)
• Decision Date: 07 September 2022
• Docket Number: 527997/19,Motion Seqs. 1,2,and 3
• Parties: Ella Shomshonov, Rodion Yermolayev and Wen Chen, Plaintiffs, v. Board Of Managers of the Heights Condominium, Garg Development, Inc., Carmine Gargano, Rosa Gargano, Michael Gargano and Gerardo Gargano, Defendants.
• Court: New York Supreme Court

2022 NY Slip Op 33112(U)

Ella Shomshonov, Rodion Yermolayev and Wen Chen, Plaintiffs,
v.
Board Of Managers of the Heights Condominium, Garg Development, Inc., Carmine Gargano, Rosa Gargano, Michael Gargano and Gerardo Gargano, Defendants.

No. 527997/19, Motion Seqs. 1, 2, and 3

Supreme Court, Kings County

September 7, 2022

Unpublished Opinion

PRESENT: CAROLYN E. WADE, Justice.

HON. CAROLYN E. WADE JUSTICE

The following e-filed papers read herein: NYSCEF Nos.:

Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed____ 17-21.38-39.71-72

Opposing Affidavits (Affirmations)____ 65-68. 82, 88

Affidavits/ Affirmations in Reply____ 93. 94

Other Papers: Affidavits/Affirmations in Support____ 65-68

Upon the foregoing papers, and after oral argument, plaintiffs, Ella Shomshonov, Rodion Yermolayev and Wen Chen move for an order, pursuant to CPLR 3212, granting summary judgment on their verified complaint seeking a declaratory judgment compelling certain relief from defendants, Board of Managers of the Heights Condominium (Board), Garg Development, Inc, (Garg), Rosa Gargano (Rosa), Michael

1

Gargano (Michael) and Gerardo Gargano (Gerardo).^[1] Garg, Rosa, Michael and Gerardo (collectively, Garg defendants) cross-move for an order, pursuant to CPLR 3212, granting summary judgment dismissing the plaintiffs' verified complaint. The Board cross-moves for an order: (1) pursuant to CPLR 3211 (a) (3), (5) and (7), dismissing the verified complaint, (2) pursuant to CPLR 8106 and 8202, awarding the costs of the motion in the amount of $100 and (3) pursuant to CPLR 8101 and 8201, awarding the costs of this action in the amount of $200.

Background

Plaintiffs are individual unit owners in a 13-unit Condominium building located at 7902 15th Avenue in Brooklyn. The Condominium was established under a Condominium Declaration approved by the New York State Attorney General on January 17, 2001. Garg was the sponsor of the Condominium under the Offering Plan. Michael and Gerardo are the principals of Garg. Rosa, while not a principal of Garg or a member of the Board, allegedly assumed duties as managing agent of the Condominium. According to the verified complaint, the Garg defendants failed, refused and neglected to sell 7 of the 13 residential units in the building, and instead have conveyed them to "family members" for little to no consideration and rented to tenants.2 Plaintiffs allege that by reason of the failure to sell the majority of the units, the Garg defendants breached the covenant of good faith and fair dealing implied in plaintiffs' purchase agreements,

2

frustrated plaintiffs' ability to resell their apartments and interfered with plaintiffs' ability to refinance their mortgages, as lenders are unwilling to loan money for the purchase or refinancing of apartments in buildings in which there is a high percentage of "Sponsor-owned units." Plaintiffs also allege that the failure or refusal of the Garg defendants to sell the units on the open market have caused common charges to increase due to apartments being retained by family members of the Garg defendants and rented out to transient tenants, causing wear and tear to the buildings, and requiring additional maintenance.

Plaintiffs allege that all of the defendants, in contravention of the Offering Plan, failed to produce financial reports of the Condominium budget and records demonstrating income received and payments made by the Condominium for the period between 2002-2017, and the limited amount of financial reports and profit/loss statements provided thereafter contained clear inconsistencies. Plaintiffs further allege that in or around February 8, 2005, without plaintiffs' knowledge or consent, cell phone towers and/or antennas were installed on the roof of the subject building, part of the common elements of the condominium, but at no point did defendants include in the budget or provide any profit/loss statements regarding rental income received from said cell phone towers/antennas to plaintiffs.

Plaintiffs further allege that in a notice to unit owners by the Board, dated September 13, 2016, the Board indicated that the water meter for the Condominium was removed in 2007 and not replaced until 2011, and that defendants failed to address the water meter and water and sewage bills issue for several years, resulting in $57,921.76 of water charges, payment of which is sought from plaintiffs. Plaintiffs also state that they

3

are in fear of losing the use of their storage units which they have owned and used since the time of purchase due to threats by Rosa to change the locks thereto.

Plaintiffs also contend that they are taxed in the wrong tax class; however, defendants have refused to apply for a tax abatement. Plaintiffs argue that they have suffered serious financial harm in that they cannot sell their units since other comparable condominiums are paying less in yearly property taxes and buyers are unwilling to pay higher property taxes for the units in the subject Condominium.

Plaintiffs state that an amendment to the Condominium Declaration dated August 15, 2007 eliminated parking space P10, but that on July 21, 2008, parking space P10 was transferred by deed from Garg to Carmine Gargano without authorization by any party acting under color of authority. Finally, plaintiffs contend that defendants have (1) failed to maintain the luxury status of the Condominium by neglecting maintenance of the building, resulting in Department of Buildings violations and fines as well as Department of Housing and Preservation and Development violations; that defendants then shifted responsibility of these violations and fines to plaintiffs by imposing common charge liens against plaintiffs' individual units; (2) that defendants' neglect has led to broken lights,...