Zyuz v. Bd. of Dirs. of 313-23 Owners, Corp.
| Decision Date | 12 October 2018 |
| Docket Number | Index No.: 506065/2016 |
| Citation | 2018 NY Slip Op 32740 (U) |
| Parties | In the matter of The Application of ANASTASIA ZYUZ, Petitioner, For a Judgment under Article 78 of The Civil Practice Law and Rules, v. THE BOARD OF DIRECTORS OF 313-23 OWNERS, CORP., IRENE SHREYBERG, Individually and as a Managing Agent of 313-23 OWNERS CORP., Respondents |
| Court | New York Supreme Court |
DECISION/ORDER
The following papers numbered 1 to were read on this petition:
Papers: Numbered: Notice of Motion/Order to Show CausePetition/Affidavits/Affirmations/Exhibits 1 Answering Affirmations/Affidavits/Exhibits 2 Reply Affirmations/Affidavits/Exhibits 3 Other
Upon the foregoing papers, the petition is decided as follows:
The petitioner, Anastasia Zyuz, a shareholder of a residential cooperative corporation known as 313-23 Owners Corp. (the "cooperative") commenced this Article 78 proceeding against the Board of Directors of the cooperative and Irene Shreyberg, the alleged managing agent, seeking the following relief: (a) an injunction preliminarily and/or permanently enjoining and restraining the respondents from (I) evicting or ejecting her from the premises during the pendency of this proceeding on the basis of petitioner's alleged failure to cure her default, and (ii) imposing any additional fines or fees upon her without providing her an opportunity to be heard by the Board (b) directing respondent to reverse, rescind and annul its decision to terminate her lease with 313-23 Owners Corp based upon her failure to cure her default; (c) directing respondent to reverse, rescind an annul fines totaling $24,483.59 that were imposed upon her, together with the accumulated costs and interests; (d) awarding her damages, including punitive damages against the Board of Directors and 313-23 Brightwater Court and Irene Shreyberg in an amount to be determined; (e) awarding petitioner costs and disbursements, including reasonable legal fees pursuant to RPL § 234 in an amount of be determined; (f) awarding damages, cost, disbursements and attorney fees (g) such other and further relief as to this Court may seem just and proper.
Background:
Petitioner has been a stockholder and proprietary lease holder in a residential cooperative corporation ("cooperative") known as 313-23 OWNERS CORP. since May of 2013. The cooperative owns the building located at 313-23 Bridgewater Court, Brooklyn, New York and the petitioner resides in apartment apt. 4C . Petitioner she has been living in the apartment with her husband since December of 2014. The building is managed by the Board of Directors of 313-23 Owners Corp. who apparently employs ARM Management to run the building, Irene Shreyberg alleged to be the managing agent of the building.
Petitioner maintains the respondents have improperly terminated her proprietary lease andare in the process of evicting her from the premises for failing to pay sublet fees, failing to pay maintenance charges and failing to pay a host of fines, including fines that were apparently imposed due to petitioner's fairly to correct a violation due to an improperly installed air conditioner. She maintains that she was never given timely notice or the reasons why the fees, charges and fines were imposed and as never given an opportunity to cure any of the violation that she was apparently charged with. She further maintains that the fees, charges and fines were assessed against in violation of the proprietary lease and house rules.
Analysis:
Initially, the Court notes that a proceeding to review a determination of a board of a cooperative apartment may properly be commenced pursuant to CPLR article 78 . When called upon to review a determination of a board of a cooperative apartment, the Court is required to apply the "business judgment rule." In the context of cooperative dwellings, the business judgment rule provides that a court should defer to a cooperative board's determination 'so long as the board acts for the purposes of the cooperative, within the scope of its authority and in good faith' " (40 W. 67th St. v. Pullman, 100 N.Y.2d 147, 153, 760 N.Y.S.2d 745, 790 N.E.2d 1174, quoting Matter of Levandusky v. One Fifth Ave. Apt. Corp., 75 N.Y.2d 530, 538, 554 N.Y.S.2d 807, 553 N.E.2d 1317).
To obtain relief from a cooperative board's determination, "an aggrieved shareholder-tenant must make a showing that the board acted (1) outside the scope of its authority, (2) in a way that did not legitimately further the corporate purpose or (3) in bad faith" (40 W. 67th St. v. Pullman, 100 N.Y.2d at 155, 760 N.Y.S.2d 745, 790 N.E.2d 1174). "[T]he broad powers of cooperative governance carry the potential for abuse when a board singles out a person for harmful treatment or engages in unlawful discrimination, vendetta, arbitrary decision making and favoritism" (id. at 157, 760 N.Y.S.2d 745, 790 N.E.2d 1174, see also In re Dicker v. Glen Oaks Vill. Owners, Inc., 153 A.D.3d 1399, 1401, 61 N.Y.S.3d 338, 340-41 (N.Y. App. Div. 2017), leave to appeal denied sub nom. Dicker v. Glen Oaks Vill. Owners, Inc., 31 N.Y.3d 907, 103 N.E.3d 1243).
While many CPLR article 78 proceedings are resolvable by the court on the papers as a matter of law, as if determining a motion for summary judgment (see CPLR 409[b]; Matter of Barreca v. DeSantis, 226 A.D.2d 1085, 1086, 641 N.Y.S.2d 953; Matter of Major v. Cohen, 126 A.D.2d 205, 209, 513 N.Y.S.2d 271; Matter of 22 Park Place Coop. v. Board of Assessors of County of Nassau, 102 A.D.2d 893, 894, 476 N.Y.S.2d 935; Matter of Battaglia v. Schuler, 60 A.D.2d 759, 759-760, 400 N.Y.S.2d 951), CPLR article 78 proceedings may also involve questions of fact requiring trial (see CPLR 7804[h]; American Assn. of Bioanalysts v. New York State Dept. of Health, 75 A.D.3d 939, 941, 906 N.Y.S.2d 356; ADC Contr. & Constr. Corp. v. New York City Dept. of Design & Constr., 25 A.D.3d 488, 488-489, 808 N.Y.S.2d 69; Matter of Vergata v. Superintendent of Bldgs. of Vil. of Westbury, 108 A.D.2d 750, 750-751, 485 N.Y.S.2d 97; Matter of Agresti v. Buscemi, 28 A.D.2d 877, 281 N.Y.S.2d 853, affd. 28 N.Y.2d 984, 323 N.Y.S.2d 840, 272 N.E.2d 339; Matter of Wilder v. Straus-Duparquet, 5 A.D.2d 1, 3, 168N.Y.S.2d 1005).
Here, the parties submissions did not address what the Court believes are important issues: Does the proprietary lease or...
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