Surfair Equities, Inc. v. Marin

Decision Date15 January 2020
Docket NumberL & T 56048/19
Citation66 Misc.3d 1216 (A),120 N.Y.S.3d 718 (Table)
Parties SURFAIR EQUITIES, INC., Petitioner, v. Alberto MARIN, John Doe and Jane Doe, Respondents.
CourtNew York Civil Court

Regina M. Marotti, P.C., 532 East Olive Street, Long Beach, NY 11561, Attn: Regina M. Marotti, Esq., Attorneys for Petitioner

The Law Offices of Ari Mor, Esq., P.C., 111 John Street, Suite 1805, New York, NY 10038, Attn: Ari Mor, Esq., Attorneys for Respondent

Julie Poley, J.

Recitation, as required by CPLR 2219(a)

Notice of Motion and Affidavits Annexed 1

Order to Show Cause and Affidavits Annexed 0

Answering Affidavits 2

Replying Affidavits. 3

Exhibits 4

Stipulations 0

Other 0

Petitioner, a cooperative housing corporation ("co-op") appearing by counsel, commenced this objectionable conduct holdover proceeding to recover possession of Apt. 3A located at 35-30 73rd Street, Jackson Heights, NY 11435 ("premises"). Respondent Alberto Marin is the shareholder of Apt. 3A pursuant to a proprietary lease is also represented by counsel. The premises, a cooperative unit are exempt from rent control and rent stabilization pursuant to General Business Law § 352-eeee. Petitioner alleges that after approximately 20 years of objectionable conduct, and repeated written notices, the Board of Directors held a Special Meeting to discuss whether Respondent's tenancy should be terminated for objectionable conduct pursuant to Paragraph 31(f) of Respondent's proprietary lease. After deliberations Respondent's proprietary lease was duly terminated by a unanimous vote by the Board of Directors. Respondent failed to vacate and this summary holdover proceeding ensued.

Pending Motions :

At this juncture, two motions are before the Court. Petitioner moves for summary judgment pursuant to CPLR § 3212 granting Petitioner a final judgment of possession and dismissing Respondent's defenses and counterclaims, including striking Respondent's jury demand. Petitioner contends that the co-op acted within its authority and in good faith, properly terminating Respondent's tenancy, and therefore the Court should defer to the Board vote and issue a warrant of eviction to recover the premises from Respondent. Petitioner also asks the Court to schedule a hearing to determine attorneys' fees and costs to be awarded.

Respondent opposes, and cross-moves for summary judgment pursuant to CPLR § 3212 to dismiss the proceeding and for dismissal pursuant to CPLR § 3211(a)(7) for failure to state a cause of action. Respondent's argument is threefold: (1) That the co-op acted outside the scope of its authority by not precisely following the procedure prescribed by the co-op for sending notices; (2) That the co-op acted in bad faith by deliberating "off the record" at the Special Meeting and by failing to state the factual basis in support of its decision to terminate Respondent's tenancy based on objectionable conduct; and (3) That the Notice of Termination fails to state a cause of action because it is factually deficient. Respondent also seeks an award for attorneys' fees and costs. Both motions are fully briefed and are consolidated for disposition herein.

Background: Co-op Board Votes to Terminate Proprietary Lease :

Petitioner submits that Respondent engaged in objectionable conduct throughout his tenancy which began in 1994. Petitioner alleges that for more than 20 years Respondent has been making excessive noise in the building and behaves in a manner that is objectionable and interferes with the quite enjoyment of other shareholders and tenants' properties. Some of this behavior includes but is not limited to: repeatedly banging and knocking on the floors, walls and ceilings of his apartment at all hours of the day and night; violently pounding and kicking the doors of other apartments; continuously buzzing and banging on the door to Apartment 4A; speaking to building residents in an abusive, threatening and rude manner; playing his radio loudly and incessantly; blaring his television volume at all hours of the day and night for weeks at a time causing the police to be called to the building as a result of the excessive noise; and he damaged the door and door frame to apartment 2A by beating it with a baseball bat.

Since 1998 building residents lodged complaints against Respondent on a regular basis. At times complaints were logged on a daily and monthly basis throughout most years of Respondent's tenancy. Petitioner alleges sending numerous warnings to Respondent asking him to conform his conduct to the proprietary lease and House Rules. Attached to the pleadings are 15 letters and notices to Respondent regarding his behavior. The letters include notices to cure, and in some years the notices resulted in mediation with a neighbor. Additionally, some letters included invoices for the alleged property damage.

Ultimately, Petitioner scheduled a Special Meeting of the Board of Directors ("Board") for January 10, 2019 for the specific purpose of deciding whether to terminate Respondent's proprietary lease due to objectionable conduct pursuant to Paragraph 31 of the proprietary lease. Paragraph 31 of the proprietary lease authorizes Petitioner to terminate the proprietary lease if Respondent engages in objectionable conduct. (See , P. Ex. C, pg. 23). Paragraph 31(f) of the proprietary lease provides in pertinent part:

Lessee's Objectionable Conduct
(f) If at any time the Lessor shall determine, upon the affirmative vote of two-thirds of its then Board of Directors, at a meeting duly called for that purpose, that because of objectionable conduct on the part of the Lessee, or of a person dwelling or visiting in the apartment, repeated after written notice from Lessor, the tenancy of the Lessee is undesirable; (it being understood, without limiting the generality of the foregoing, that repeatedly to violate or disregard the House Rules attached hereto or thereafter established in accordance with the provisions of this lease, or to permit or tolerate a person of dissolute, loose or immoral character to enter or remain in the building or the apartment, shall be deemed to be objectionable conduct); (See , P. Ex. C, pg. 25).

In advance of the Special Meeting, Petitioner sent Respondent a Notice of Special Meeting of the Board of Directors of Surfair Equities, Inc., dated December 14, 2018 ("Notice of Special Meeting"). The Notice of Special Meeting included the proposed resolution that the Board would be asked to vote on to terminate Respondent's proprietary lease. (See , Petition, Ex. B). Pursuant to the By Laws of Surfair Equities, Inc. ("By Laws"), Special Meetings of the Board shall be held at the co-op and may be called by the co-op President on two days' notice to each director, either personally or by mail or by telegram. (See , P. Ex. E, pg. 5 of By Laws). In accordance therewith, the Notice of Special Meeting was called by the President of the co-op, provided more than two days' notice, and designating the meeting place at the Basement Meeting Room of the co-op. (See , Petition, Ex. B). There is no dispute concerning the election or standing of the then President of the co-op.

Petitioner also sent Respondent a Notice of Opportunity to Attend Special Meeting of Board of Directors and the Cooperative, dated December 14, 2018 ("Notice of Opportunity to Attend Special Meeting"), which informed Respondent that he can attend the Special Meeting with or without an attorney, and that he has the opportunity to be heard prior to the Board vote. (See , Petition, Ex. B). The Notice of Opportunity to Attend Special Meeting also provided Respondent with the proposed resolution that the Board would be asked to vote on. In addition, the Notice of Opportunity to Attend Special Meeting contained 28 paragraphs alleging instances in which Respondent violated the proprietary lease and the House Rules from August 2017 through September 18, 2018. Copies of approximately 15 letters and notices previously sent to Respondent concerning alleged objectionable conduct are also annexed to the Notice of Opportunity to Attend Special Meeting.

Petitioner alleges that Respondent's conduct violates Paragraph 18(b) of the proprietary lease ["The Lessee shall not permit or suffer any unreasonable noise or anything which will interfere with the rights of other lessees or unreasonably annoy them or obstruct the public halls or stairways"]. (See , P. Ex. C, pg. 16.). Petitioner also alleges that Respondent's conduct violates Paragraph 24 of the proprietary lease entitled "cooperation," which provides that "The Lessee shall always in good faith endeavor to observe and promote the cooperative purposes for the accomplishment of which the Lessor is incorporated." (See , P. Ex. C, pg. 20). Paragraph 13 in the proprietary lease provides that the co-op has adopted House Rules and that shareholders covenant "to comply with all such House Rules and see that they are faithfully observed by the family, guests, employees and subtenants of the Lessee." (See , P. Ex C, pg. 8). The paragraph further provides that "Breach of a House Rule shall be a default under this lease." (See , P. Ex. C, pg. 8). The House Rules, dated September 20, 2013, are attached to the proprietary lease. House Rule 15 provides:

"No Lessee shall make or permit others including, but not limited to, their invitees, to make any disturbing noises in the building or do or permit anything to be done therein which will interfere with the rights, comfort or convenience of other Lessees or residents. No Lessee shall play upon or suffer to be played upon any musical instrument or permit to be operated a stereo system or a radio or television or computer or video game system loudspeaker in such Lessee's apartment between the hours of ten o'clock p.m. and the following eight o'clock a.m. if the same shall disturb or annoy other occupants of the building. No construction or repair work or other installation involving noise shall be conducted in any apartment except
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