Zoeller v. Crescent Beach Condominium, 2009 NY Slip Op 31426(U) (N.Y. Sup. Ct. 6/23/2009)

• Court: New York Supreme Court
• Writing for the Court: Emily Pines
• Citation: Zoeller v. Crescent Beach Condominium, 2009 NY Slip Op 31426(U) (N.Y. Sup. Ct. 6/23/2009), 2009 NY Slip Op 31426, 9238-2008, Motion Sequence No's 002 MG CASEDISP (N.Y. Sup. Ct. Jun 23, 2009)
• Decision Date: 23 June 2009
• Docket Number: 9238-2008,Motion Sequence No's 002 MG CASEDISP
• Parties: FRED J. ZOELLER AND KATHLEEN ZOELLER, Plaintiff, v. CRESCENT BEACH CONDOMINIUM, ROBERT D'EUSTACHIO, GARY COURTIER, JANICE ANGELI, EMIL NAT ALE and LINDA FITZMAURICE, Defendants.

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2009 NY Slip Op 31426(U)

FRED J. ZOELLER AND KATHLEEN ZOELLER, Plaintiff, v. CRESCENT BEACH CONDOMINIUM, ROBERT D'EUSTACHIO, GARY COURTIER, JANICE ANGELI, EMIL NAT ALE and LINDA FITZMAURICE, Defendants.

9238-2008

Motion Sequence No's 002 MG CASEDISP

Supreme Court, Suffolk County

June 23, 2009

Somer & Heller, LLP Stanley J. Somer, Esq. Commack, New York, Attorney for Plaintiffs

Frank J. Lombardo, Esq. Malapero & Prisco LLP New York, New York, Attorney for Defendants

EMILY PINES, Judge.

ORDERED, that the motion (motion sequence number 002) by defendants pursuant to CPLR §3212, granting summary and dismissing the Complaint is granted in its entirety and the action is dismissed.

This action arises out of a dispute between plaintiffs and defendants regarding the removal and restoration of beach grass in certain portions of the common areas located in the Crescent Beach Condominium. Plaintiffs commenced this action by the filing of a Summons and Verified Complaint on or about March 11,2008 and issue was joined by defendants' service of a Verified Answer dated April 15,2008. Plaintiffs are the owners of a condominium unit, specifically, unit 16, in the Crescent Beach Condominium, located in Greenport, Suffolk County, New York. The individual defendants are past or current members of the Board of Managers (the "Board") of Crescent Beach Condominium and/or relatives of such members. The submissions reflect that in 1988, a "French drain" was installed to address flooding problems in the condominium, specifically in front of units 15 through 20, and that in 1989, beach grass was planted over the French drain. It is undisputed that the approximate cost of installation, $35,000.00, was approved by the members of the condominium. In 2005, the beach grass was subsequently trimmed as it became overgrown with weeds and plaintiffs sought to have the beach grass replaced along the entire French drain. Subsequently, the Board voted to replant the beach grass in certain areas to experiment with whether a denser planting would reduce the weeds. Although plaintiffs attempted to have the beach grass restored, the owners instead voted to keep the beach grass in its current trimmed state. It appears that although the owners did not vote to restore the beach grass, plaintiffs hired their own landscaper in an attempt to independently replace the beach grass on that portion of the French drain in front of their unit. The landscaper was advised by a member of the Board to cease such activity as it was not authorized by the Board and he left the premises.

Plaintiffs then commenced the instant action and set forth eight causes of action sounding in breach of contract, breach of fiduciary duty, intentional infliction of emotional distress, harassment, ejectment, and breach of covenant of quiet enjoyment. The first cause of action is against defendant Crescent Beach Condominium { "Crescent") for breach of contract on the ground that Crescent is obligated by the by-laws to maintain the common areas of the condominium, that the failure to restore the beach grass in front of unit 16 has caused flooding and an unsightly condition in that area and that such failure to restore the beach grass is a breach of contract. On the first cause of action plaintiffs seek an Order directing Crescent to restore the beach grass. The second cause of action against Crescent seeks damages for deprivation of plaintiffs' quiet use and enjoyment of their property. The third cause of action against Crescent alleges ejectment of plaintiffs' landscaper from the property and seeks damages in the amount of $1,437.10. The fourth cause of action alleges that the Board agreed to restore beach grass in front of certain units that were owned by members of the Board or their family members, and that such actions were in bad faith and for the sole purpose of harassing, annoying or harming plaintiffs and plaintiffs seek punitive damages. The fifth cause of action sounds in intentional infliction of emotional distress and the sixth cause of action alleges misappropriation of funds. In the seventh cause of action plaintiffs seek an accounting for all monies spent on the operation, maintenance and repair of the condominium. Finally, in the eighth cause of action, plaintiffs seek a money judgment for the reimbursement of allegedly misappropriated funds and punitive damages.

Defendants now move for summary judgment seeking an Order dismissing the action in its entirety. Defendants have annexed a copy of the pleadings, the by-laws of Crescent, the transcript of the examination before trial of Kathleen Zoeller taken on October 16,2008, the transcripts of the examinations before trial of each of the individual defendants held on October 17, 2008, minutes of the Board meetings and the Verified Bill of Particulars dated August 19, 2008.

First, with regard to the breach of contract action, defendants argue that the Board fully complied with the terms of its by-laws in determining to keep the beach grass in its present state (after it was trimmed) and its actions are thus protected by the business judgment rule. Specifically, a meeting was held on May 19, 2007 and the owners present voted to maintain the beach grass as trimmed. Although plaintiff, Kathleen Zoeller, attempted to bring forth a motion to restore the beach grass, her motion failed to obtain the votes needed. Thus, because the Board acted pursuant to its by-laws, defendants assert that there is no question of fact and the breach of contract claim must fail. Next, turning to the breach of the covenant of quiet enjoyment, defendants argue that this must also be dismissed as plaintiffs have failed to demonstrate either actual or constructive eviction as required to succeed on this claim. Defendants assert that there is no testimony or other evidence that the defendants barred plaintiffs from the premises or prevented plaintiffs from using their unit for its intended purpose. Moreover, defendants note that despite plaintiffs claims that they feared flooding of the premises, Kathleen Zoeller testified at her examination before trial ("EBT") that the last time flooding occurred was about ten (10) years ago. Therefore, defendants urge the Court to grant summary judgment and dismiss this cause of action.

Similarly, defendants argue that the third cause of action arising out of the damages for services of plaintiffs' private landscaper, is without merit. Here, as in the first cause of action, defendants argue that the bylaws of Crescent, specifically, Article 5, Section 13, prohibited plaintiffs from hiring their own landscaper to restore the beach grass without the written consent of the Board. It is undisputed that plaintiffs did not obtain such written consent, and thus, failed to comply with the by-laws, in violation of RPL §339-j, and defendants urge the Court to grant summary judgment and dismiss the third cause of action. On the fourth cause of action for punitive damages for harassment and annoyance, defendants argue that no such causes of action exist, but rather, plaintiffs must satisfy the criteria to establish a prima facie tort cause of action. Defendants argue that plaintiffs cannot meet these criteria, to wit, intentional infliction of harm, causing special damages, without excuse or justification, by an act or series of acts that would otherwise be unlawful. Here, defendants assert that plaintiffs cannot show they suffered a specific and immeasurable loss to prove the required special damages and moreover that Crescent engaged in unlawful acts by the replacement of certain portions of the beach grass. Instead, defendants note that defendant D'Eustachio testified that only some of the beach grass was replanted to determine the economic and maintenance feasibility of the beach grass and that such determination was within the scope of the powers of the Board and this claim must also be dismissed.

According to defendants, the fifth cause of action sounding in intentional infliction of emotional distress must suffer the same fate as defendants claim plaintiffs have failed to establish the required elements of this claim. Here, defendants note that plaintiffs cannot even meet the first criteria of extreme and outrageous conduct as the cutting down of beach grass is not so outrageous as to "go beyond all possible bounds of decency." Additionally, plaintiffs have failed to demonstrate that they suffered mental anguish of a severe nature, as their own admissions in the Verified Bill of Particulars and depositions reflect that they did not seek medical intervention, nor suffered sleeplessness, nervousness or any fears as a result of defendants' alleged conduct, thus, defendants argue this cause of action must be dismissed.

Defendants' arguments regarding the misappropriation of funds, bad faith and claims for punitive damages, parallel the breach of contract claim in that they argue that the Board acted within its authority when a replanted the beach grass in front of certain units and thus these causes of action must be dismissed. On the cause of action for breach of fiduciary duty, defendants argue that plaintiffs have not pled such with sufficient specificity nor given notice of the exact occurrence which plaintiffs claim amount to a breach of fiduciary duty and must be dismissed.

Finally, defendants seek the imposition of sanctions against the plaintiffs for commencing a frivolous action pursuant to CPLR §8303-a(c).

Plaintiffs oppose the motion by affidavit of Kathleen Zoeller and submit copies of discovery demands and responses, minutes of Board meetings, photographs, correspondence, account statements and the by-laws, in sum, plaintiffs argue that questions of fact exist as to whether the actions by the Board with regard to the landscaping of the beach grass over the French drain were made solely to benefit members of the Board and/or their family members, to the exclusion of plaintiffs. Specifically...