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FILED: NEW YORK COUNTY CLERK 08/19/2022 11:19 AM INDEX NO. 157094/2022
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/19/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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ESPLANADE GARDENS, INC.
Index No.: /2022
Plaintiff,
- against - SUMMONS
JOCELYN NIXON,
Defendant.
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To the above-named Defendant:
YOU ARE HEREBY SUMMONED to answer the Complaint in this action and to serve a copy
of your answer, or if the Complaint is not served with this Summons, to serve a notice of appearance, on
the Plaintiff’s attorney(s) within 20 days after the service of this Summons, exclusive of the day of
service (or within 30 days after the service is complete if this Summons is not personally delivered to
you within the State of New York); and in case of your failure to appear or answer, judgment will be
taken against you by default for the relief demanded in the Complaint.
The action will be heard in the Supreme Court of the State of New York, in and for the County
of New York. Venue in the County of New York is proper as Plaintiff’s principal office is located in that
County.
Dated: New York, New York
August 18, 2022
KAGAN LUBIC LEPPER
FINKELSTEIN & GOLD, LLP
Attorneys for Plaintiff
By: Joseph Mitchell
Joseph P. Mitchell, Esq.
200 Madison Avenue, 24th Floor
New York, New York 10016
(212) 252-0300
jmitchell@kll-law.com
TO: Jocelyn Nixon
2541 Seventh Avenue, Apt. 20C
New York, NY 10039
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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ESPLANADE GARDENS, INC.,
Index No.: /2022
Plaintiff,
- against - COMPLAINT
JOCELYN NIXON,
Defendant.
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Plaintiff ESPLANADE GARDENS, INC. by and through its attorneys Kagan Lubic Lepper
Finkelstein & Gold, LLP, as and for its Complaint against Defendant, alleges the following:
PRELIMINARY STATEMENT
1. Plaintiff Esplanade Gardens, Inc. (hereinafter “Esplanade”) is a Mitchell-Lama
corporation which owns and maintains six residential cooperative buildings in upper Manhattan which
contain over 1600 apartments. Esplanade is in the process of undertaking a major capital improvement
project at itsbuildings. The capital improvement project is being performed with funds provided with
grants from the New York City Housing Development Corporation (“HDC”).
2. The capital project involves upgrading the antiquated electrical service and wiring,
replacing plumbing risers and certain structural repairs to the balconies. These repairs and upgrades are
sorely needed in order to maintain Esplanade’s buildings in good and safe condition.
3. The project requires access to each and every apartment throughout the Esplanade
complex. The project is being staggered and staged so that work is performed and completed in certain
buildings before moving on to the next. Currently, work is taking place in the building located at 2541
Seventh Avenue, New York, New York (the “Building”).
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4. The project has been impeded by Defendant who has refused to provide access to her
apartment in conjunction with the project.
5. By this action, Esplanade is seeking a declaratory judgment and mandatory injunction
requiring Defendant to provide unfettered access to her apartment in order for the capital improvement
project to be performed.
THE PARTIES
6. Esplanade is a Mitchell-Lama cooperative corporation formed and existing pursuant
Article II of the Private Housing Finance Law of New York and subject to the jurisdiction and
supervision of the New York City Department of Housing Preservation and Development (“HPD”).
7. Esplanade is the owner of the apartment complex having a principal place of business at
2569 Seventh Avenue, New York, New York 10039. The Esplanade apartment complex consists of six
high-rise residential apartment buildings and the surrounding land and amenities.
8. Defendant Jocelyn Nixon (“Defendant”) is the shareholder of the apartment 20C
(“Apartment”) located in the Building pursuant to her occupancy agreement dated October 11, 1994.
THE CAPITAL IMPROVEMENT PROJECT
9. In 2019, Esplanade began a major capital improvement project to repair, improve and
upgrade mechanical and structural systems throughout all of its buildings, which work requires access to
all apartments in the buildings.
10. Specifically, the components of the capital improvement project (hereinafter the
“Project”) and the access requirements for such work, were as follows:
a. Electrical Upgrades: replacing all wall outlets and light switches throughout each of the
apartments. This includes replacing the existing fuse box with a circuit breaker retro fit
kit, installing Ground Fault Circuit Interrupters (hereinafter, “GFCI”) in kitchens and
bathrooms, installing waterproof outlet covers and GFCI on each apartment’s balcony, if
applicable. On the first day Esplanade of the electrical upgrade work, Esplanade requires
access for one to two hours to move furniture by Esplanade supplied labor, to give the
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electrician access to outlets. On the second day Esplanade requires access from 9am to
5pm to complete this portion of the electrical upgrade work.
b. Plumbing Riser Replacement: removing and replacing the existing Drain, Waste, Vent
system (hereinafter, “DWV”) to include the bathroom and kitchen sanitary (soil and vent)
piping and balcony storm water piping which includes the balcony drain body, branch
piping and leaders through a chase wall in the apartments. Esplanade requires fifteen
working days to complete this stage of the capital improvement project.
c. Entrance door finish painting. Entrance door must be opened to complete final coat.
Esplanade requires a minimum of 4 hours to complete this portion of the work.
d. Bathroom vent shaft register cleaning. Esplanade requires ten to fifteen minutes to
complete this work.
e. Temporary protection installation prior to shaft cleaning process. Esplanade requires ten
minutes to complete this temporary protection installation.
f. Balcony work: Removal of all finishes, furniture and personal belongings for balcony
reconstruction. Shareholders are responsible to remove items. Balcony doors will be
sealed for protection and will not be accessible for one year.
11. The Project involves construction work of significant scale and complexity. Esplanade
engaged Horrigan Development LLC. (hereinafter, “Horrigan”) on October 1, 2020, replacing Vista
Construction & Environmental Group Inc. (hereinafter, “Vista CEG”), as its new owners’ representative
and construction manager to oversee the Project and coordinate the many parts of the Project, including
obtaining access to the apartments for work by the various contractors.
THE OCCUPANCY AGREEMENT AND DENIAL OF ACCESS
12. As is material here, the Occupancy Agreement provides that Esplanade is generally
responsible for maintaining and repairing the plumbing, electrical, structural and drainage systems in the
Apartments. As such, Esplanade is responsible for all of the building systems which are part of the
Project.
13. Paragraph Fourteenth of the Occupancy Agreement outlines the “Members Duties and
Obligations” and provides that Defendant is required to provide Esplanade with access and entry to the
Apartment in order to perform repairs and alterations. Specifically, Subparagraph 9 of Paragraph
Fourteenth states that each shareholder, cooperator and occupant is required:
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(9) To permit the Company [Esplanade] to erect, use and maintain pipes and
conduits in and through the demised premises and to permit the Company to enter
the demised premises, to examine same and to make such decorations, repairs,
alterations, improvements, or additions as the Company may deem necessary or
desirable. The rental shall in nowise abate while said decorations, repairs,
alterations, improvements or additions are being made because of the prosecution
of any such work or otherwise.
14. Paragraph Fifteenth (1) of the Occupancy Agreement further states:
(1) If the Member shall not be personally present to open and permit an entry into
said premises at any time when for any reason an entry therein shall be
necessary and permissible hereunder, the Company may enter the same by a
master key or may forcibly enter same without rendering the Company liable
therefore (if during such entry the Company shall accord reasonable care to
the Member’s property) and without in any manner affecting the obligations
of this Agreement. The Member agrees that the officers and employees of the
Company and the duly authorized representatives of the Housing and
Redevelopment Board of the City of New York shall have a right to enter the
dwelling unit of the Member and to make inspection thereof at any reasonable
hours of the day.
15. Paragraph Sixteenth of the Occupancy Agreement provides that in the event of a default,
the cooperator, shareholder or occupant shall be responsible to Esplanade for costs and expenses,
including reasonable attorneys’ fees, incurred by Esplanade as a result of the default.
16. Because of the extent of the complexities involved and coordination required for the
Project, in early 2019 Esplanade and Vista CEG began notifying the occupants of the Building that
access to all apartments would be required for the work.
17. Esplanade, sent numerous notices to Defendant requesting access and specifying the
work to be performed and the approximate time frame.
18. Thereafter, the Project, as to work being performed inside the Building was suspended in
or about March 2020 due to the Covid-19 pandemic.
19. The plumbing contractor has attempted to gain access numerous times over the past few
months, but Defendant has continuously refused access.
20. Defendant has failed to provide access as demanded.
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21. Defendant is in the C line, which will have three areas that are opened as part of the
work:
A. The bathroom wet wall opened (wall with the sink, toilet and tub plumbing behind it)
from floor to ceiling;
B. The bedroom wall (4’ wide opening from floor to ceiling) directly behind the kitchen
sink, under the sink to connect to the new plumbing riser; and
C. The living room corner near the balcony to replace the balcony storm leader.
22. The following is the process and flow of the plumbing riser replacement work:
A. Day 1: Move furniture & inspect for leaky valves. Install temporary protection;
B. Day 2:Demolition and wall opening;
C. Day 3-5: Plumbing riser replacement and fire stopping;
D. Day 6-11: DOB inspection for plumbing, fire stopping inspection, project engineer
inspection
E. Day 12-16: Restoration – Framing, wallboard, taping, prime & paint, shower rod,
medicine cabinet, and GFCI outlet; and
F. Day 17: Punch List & final inspection by project Architect, sign off.
23. Unfortunately, Defendant has refused to comply with Esplanade’s repeated requests for
access.
24. Defendant’s refusal to allow access is highly disruptive to the other residents in the
Building in that, as a general matter, the plumbing risers are being replaced because the system has
sewer backup issues, causing this issue to continue and disrupting the all of the other residents in the F
Line.
25. The refusal of Defendant to cooperate with Esplanade’s demands for access has
prevented the work to complete the Project from occurring.
AS AND FOR A FIRST CAUSE OF ACTION FOR BREACH OF CONTRACT
(TRO, Preliminary and Permanent Injunctive Relief)
26. Plaintiff repeats and realleges each and every allegation contained in Paragraphs 1
through 25 as if set forth at length herein.
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27. Pursuant to the Occupancy Agreement, the Esplanade has the right to enter, use and
occupy the apartments in order to perform the work for the Project.
28. Esplanade has notified Defendant that she must provide unrestricted access to her
apartment for the Project, which cannot be completed without such access.
29. To date, Defendant has failed to provide access to the Apartment for the work for the
Project, in breach of her obligations under the Occupancy Agreement.
30. Defendant’s conduct in refusing to provide access has caused and will continue to cause
Esplanade to suffer irreparable harm in that it will be prevented from performing work for the Project,
which work is necessary to repair and safely maintain the Building.
31. Esplanade has no adequate remedy at law for Defendant’s breach of the Occupancy
Agreement.
32. Accordingly, Esplanade is entitled to a temporary restraining order and a preliminary and
permanent injunctive relief requiring Defendant to provide immediate access to Esplanade and its
agents, representatives and contractors and to continue to provide access of each and every future date
that she is notified that such access is required to perform work for the Project.
33. Moreover, Esplanade is entitled to a temporary restraining order, and a preliminary and
permanent injunctive relief allowing Esplanade and its agents, representatives and contractors, to enter
the Apartments forcibly in order to perform the work for the Project in the event that Defendant, (i)
refuses to provide access on the noticed dates, (ii) is not present to permit access on such dates that
access is required or (iii) otherwise fails to response to Defendant’s future notices for access.
AS AND FOR A SECOND CAUSE OF ACTION
(For A Declaratory Judgment)
34. Plaintiff repeats and realleges each and every allegation contained in Paragraphs 1
through 33 as if set forth at length herein.
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35. Based upon the foregoing, the Esplanade has the right and the obligation under the
Occupancy Agreement to enter the Apartment in order to perform the work for the Project.
36. The work is absolutely necessary in order to complete the Project.
37. Defendant has either refused to comply with or otherwise failed to respond to
Esplanade’s many demands for access.
38. An actual controversy exists as between Esplanade and Defendant.
39. Esplanade has no adequate remedy at law.
40. Accordingly, Esplanade is entitled to a judgment from the Court pursuant to CPLR 3001,
et seq., declaring that (i) Defendant is required to provide immediate access to Esplanade and its agents,
representatives and contractors and to continue to provide access on each and every future date that
Defendant is notified that such access is required to perform work for the Project, and (ii) allowing
Esplanade and its agents, representatives and contractors, to enter the apartment of Defendant, forcibly,
in order to perform the work for the Project in the event that Defendant, (A) refuses to provide access on
the noticed dates, (B) is not present to permit access on such dates that access is required, or (C)
otherwise fails to respond to Esplanade’s future notices for access.
AS AND FOR A THIRD CAUSE OF ACTION FOR BREACH OF CONTRACT
(Monetary Damages)
41. Plaintiff repeats and realleges each and every allegation contained in Paragraphs 1
through 40 as if set forth at length herein.
42. Pursuant to the Occupancy Agreement, the Esplanade has the right to enter, use and
occupy the apartments in order to perform the work for the Project.
43. Esplanade has notified Defendant that she must provide unrestricted access to the
Apartment for the Project, which cannot be completed without such access.
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44. Defendant breached her obligations under the Occupancy Agreement by refusing or
otherwise failing to provide access to the apartments for the Project.
45. As a result of the lack of access to the Apartment, Esplanade has incurred damages and
will continue to incur additional damages until such time as Defendant allows access to the Apartment.
46. Such damages are a direct and proximate result of Defendant’s refusal to provide access,
and the damages would not have been incurred by Esplanade but for Defendant’s breach of her
obligations under the Occupancy Agreement.
47. Accordingly, Esplanade is entitled to an award of money damages against Defendant in
an amount to be determined at the time of trial.
AS AND FOR A FOURTH CAUSE OF ACTION FOR BREACH OF CONTRACT
(Attorneys’ Fees and Costs)
48. Plaintiff repeats and realleges each and every allegation contained in Paragraphs 1
through 47 as if set forth at length herein.
49. Pursuant to Paragraph Sixteenth of the Occupancy Agreement, Esplanade shall be
entitled to recover itscosts and expenses, including reasonable attorneys’ fees, incurred as a result of
Defendant’s default or breach of the terms of the Occupancy Agreement.
50. Defendant’s conduct in failing or refusing to provide access to the Apartment in order for
Esplanade to perform the work for the Project constitutes a default and breach of the Occupancy
Agreement.
51. Esplanade has incurred costs and expenses, including attorneys’ fees, as a result of such
default and breach, including the costs and expenses incurred in commencing and prosecuting this
action.
52. Accordingly, Esplanade is entitled to a judgment as against Defendant in an amount equal
to it costs and expenses, including attorneys’ fees, incurred as a result of Defendant’s default and breach,
said to be determined by the trier of fact.
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WHEREFORE, Plaintiff Esplanade Gardens, Inc. respectfully demands judgment against
Defendant as follows:
(a) On the First Cause of Action, a temporary restraining order, and a preliminary and permanent
injunction that (i) Defendant is required to provide immediate access to Esplanade and its
agents, representatives and contractors and to continue to provide access of each and every
future date that Defendant is notified that such access is required to perform work for the
Project; (ii) allowing Esplanade and its agents, representatives and contractors, to enter the
apartment of Defendant, forcibly, in order to perform the work for the Project in the event
that Defendant, (A) refuses to provide access on the noticed dates, (B) is not present to
permit access on such dates that access is required, or (C) otherwise fails to respond to
Esplanade’s future notices for access.
(b) On the Second Cause of Action, a judgment from the Court pursuant to CPLR 3001, et seq.,
declaring that (i) Defendant is required to provide immediate access to Esplanade and its
agents, representatives and contractors and to continue to provide access of each and every
future date that Defendant is notified that such access is required to perform work for the
Project; (ii) allowing Esplanade and its agents, representatives and contractors, to enter the
apartment of Defendant, forcibly, in order to perform the work for the Project in the event
that Defendant, (A) refuses to provide access on the noticed dates, (B) is not present to
permit access on such dates that access is required, or (C) otherwise fails to respond to
Esplanade’s future notices for access;
(c) On the Third Cause of Action, an award of money damages against Defendant in an amount
to be determined at the time of trial;
(d) On the Fourth Cause of Action, an award of reasonable costs and attorneys’ fees in an
amount to be determined by the Court; and
(e) Such other and further relief as the Court deems just and proper.
Dated: New York, New York
August 18, 2022
KAGAN LUBIC LEPPER FINKELSTEIN
& GOLD, LLP
Attorneys for Plaintiff
By: Joseph Mitchell
Joseph P. Mitchell, Esq.
200 Madison Avenue, 24th Floor
New York, New York 10016
(212) 252-0300
jmitchell@kll-law.com
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Preview
FILED: NEW YORK COUNTY CLERK 08/19/2022 11:19 AM INDEX NO. 157094/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/19/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------------------------------------------X ESPLANADE GARDENS, INC. Index No.: /2022 Plaintiff, - against - SUMMONS JOCELYN NIXON, Defendant. ----------------------------------------------------------------------------X To the above-named Defendant: YOU ARE HEREBY SUMMONED to answer the Complaint in this action and to serve a copy of your answer, or if the Complaint is not served with this Summons, to serve a notice of appearance, on the Plaintiff’s attorney(s) within 20 days after the service of this Summons, exclusive of the day of service (or within 30 days after the service is complete if this Summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the Complaint. The action will be heard in the Supreme Court of the State of New York, in and for the County of New York. Venue in the County of New York is proper as Plaintiff’s principal office is located in that County. Dated: New York, New York August 18, 2022 KAGAN LUBIC LEPPER FINKELSTEIN & GOLD, LLP Attorneys for Plaintiff By: Joseph Mitchell Joseph P. Mitchell, Esq. 200 Madison Avenue, 24th Floor New York, New York 10016 (212) 252-0300 jmitchell@kll-law.com TO: Jocelyn Nixon 2541 Seventh Avenue, Apt. 20C New York, NY 10039 {00409173;2 } 1 1 of 10 FILED: NEW YORK COUNTY CLERK 08/19/2022 11:19 AM INDEX NO. 157094/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/19/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------------------------------------------X ESPLANADE GARDENS, INC., Index No.: /2022 Plaintiff, - against - COMPLAINT JOCELYN NIXON, Defendant. ----------------------------------------------------------------------------X Plaintiff ESPLANADE GARDENS, INC. by and through its attorneys Kagan Lubic Lepper Finkelstein & Gold, LLP, as and for its Complaint against Defendant, alleges the following: PRELIMINARY STATEMENT 1. Plaintiff Esplanade Gardens, Inc. (hereinafter “Esplanade”) is a Mitchell-Lama corporation which owns and maintains six residential cooperative buildings in upper Manhattan which contain over 1600 apartments. Esplanade is in the process of undertaking a major capital improvement project at itsbuildings. The capital improvement project is being performed with funds provided with grants from the New York City Housing Development Corporation (“HDC”). 2. The capital project involves upgrading the antiquated electrical service and wiring, replacing plumbing risers and certain structural repairs to the balconies. These repairs and upgrades are sorely needed in order to maintain Esplanade’s buildings in good and safe condition. 3. The project requires access to each and every apartment throughout the Esplanade complex. The project is being staggered and staged so that work is performed and completed in certain buildings before moving on to the next. Currently, work is taking place in the building located at 2541 Seventh Avenue, New York, New York (the “Building”). {00409173;2 } 2 2 of 10 FILED: NEW YORK COUNTY CLERK 08/19/2022 11:19 AM INDEX NO. 157094/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/19/2022 4. The project has been impeded by Defendant who has refused to provide access to her apartment in conjunction with the project. 5. By this action, Esplanade is seeking a declaratory judgment and mandatory injunction requiring Defendant to provide unfettered access to her apartment in order for the capital improvement project to be performed. THE PARTIES 6. Esplanade is a Mitchell-Lama cooperative corporation formed and existing pursuant Article II of the Private Housing Finance Law of New York and subject to the jurisdiction and supervision of the New York City Department of Housing Preservation and Development (“HPD”). 7. Esplanade is the owner of the apartment complex having a principal place of business at 2569 Seventh Avenue, New York, New York 10039. The Esplanade apartment complex consists of six high-rise residential apartment buildings and the surrounding land and amenities. 8. Defendant Jocelyn Nixon (“Defendant”) is the shareholder of the apartment 20C (“Apartment”) located in the Building pursuant to her occupancy agreement dated October 11, 1994. THE CAPITAL IMPROVEMENT PROJECT 9. In 2019, Esplanade began a major capital improvement project to repair, improve and upgrade mechanical and structural systems throughout all of its buildings, which work requires access to all apartments in the buildings. 10. Specifically, the components of the capital improvement project (hereinafter the “Project”) and the access requirements for such work, were as follows: a. Electrical Upgrades: replacing all wall outlets and light switches throughout each of the apartments. This includes replacing the existing fuse box with a circuit breaker retro fit kit, installing Ground Fault Circuit Interrupters (hereinafter, “GFCI”) in kitchens and bathrooms, installing waterproof outlet covers and GFCI on each apartment’s balcony, if applicable. On the first day Esplanade of the electrical upgrade work, Esplanade requires access for one to two hours to move furniture by Esplanade supplied labor, to give the {00409173;2 } 3 3 of 10 FILED: NEW YORK COUNTY CLERK 08/19/2022 11:19 AM INDEX NO. 157094/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/19/2022 electrician access to outlets. On the second day Esplanade requires access from 9am to 5pm to complete this portion of the electrical upgrade work. b. Plumbing Riser Replacement: removing and replacing the existing Drain, Waste, Vent system (hereinafter, “DWV”) to include the bathroom and kitchen sanitary (soil and vent) piping and balcony storm water piping which includes the balcony drain body, branch piping and leaders through a chase wall in the apartments. Esplanade requires fifteen working days to complete this stage of the capital improvement project. c. Entrance door finish painting. Entrance door must be opened to complete final coat. Esplanade requires a minimum of 4 hours to complete this portion of the work. d. Bathroom vent shaft register cleaning. Esplanade requires ten to fifteen minutes to complete this work. e. Temporary protection installation prior to shaft cleaning process. Esplanade requires ten minutes to complete this temporary protection installation. f. Balcony work: Removal of all finishes, furniture and personal belongings for balcony reconstruction. Shareholders are responsible to remove items. Balcony doors will be sealed for protection and will not be accessible for one year. 11. The Project involves construction work of significant scale and complexity. Esplanade engaged Horrigan Development LLC. (hereinafter, “Horrigan”) on October 1, 2020, replacing Vista Construction & Environmental Group Inc. (hereinafter, “Vista CEG”), as its new owners’ representative and construction manager to oversee the Project and coordinate the many parts of the Project, including obtaining access to the apartments for work by the various contractors. THE OCCUPANCY AGREEMENT AND DENIAL OF ACCESS 12. As is material here, the Occupancy Agreement provides that Esplanade is generally responsible for maintaining and repairing the plumbing, electrical, structural and drainage systems in the Apartments. As such, Esplanade is responsible for all of the building systems which are part of the Project. 13. Paragraph Fourteenth of the Occupancy Agreement outlines the “Members Duties and Obligations” and provides that Defendant is required to provide Esplanade with access and entry to the Apartment in order to perform repairs and alterations. Specifically, Subparagraph 9 of Paragraph Fourteenth states that each shareholder, cooperator and occupant is required: {00409173;2 } 4 4 of 10 FILED: NEW YORK COUNTY CLERK 08/19/2022 11:19 AM INDEX NO. 157094/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/19/2022 (9) To permit the Company [Esplanade] to erect, use and maintain pipes and conduits in and through the demised premises and to permit the Company to enter the demised premises, to examine same and to make such decorations, repairs, alterations, improvements, or additions as the Company may deem necessary or desirable. The rental shall in nowise abate while said decorations, repairs, alterations, improvements or additions are being made because of the prosecution of any such work or otherwise. 14. Paragraph Fifteenth (1) of the Occupancy Agreement further states: (1) If the Member shall not be personally present to open and permit an entry into said premises at any time when for any reason an entry therein shall be necessary and permissible hereunder, the Company may enter the same by a master key or may forcibly enter same without rendering the Company liable therefore (if during such entry the Company shall accord reasonable care to the Member’s property) and without in any manner affecting the obligations of this Agreement. The Member agrees that the officers and employees of the Company and the duly authorized representatives of the Housing and Redevelopment Board of the City of New York shall have a right to enter the dwelling unit of the Member and to make inspection thereof at any reasonable hours of the day. 15. Paragraph Sixteenth of the Occupancy Agreement provides that in the event of a default, the cooperator, shareholder or occupant shall be responsible to Esplanade for costs and expenses, including reasonable attorneys’ fees, incurred by Esplanade as a result of the default. 16. Because of the extent of the complexities involved and coordination required for the Project, in early 2019 Esplanade and Vista CEG began notifying the occupants of the Building that access to all apartments would be required for the work. 17. Esplanade, sent numerous notices to Defendant requesting access and specifying the work to be performed and the approximate time frame. 18. Thereafter, the Project, as to work being performed inside the Building was suspended in or about March 2020 due to the Covid-19 pandemic. 19. The plumbing contractor has attempted to gain access numerous times over the past few months, but Defendant has continuously refused access. 20. Defendant has failed to provide access as demanded. {00409173;2 } 5 5 of 10 FILED: NEW YORK COUNTY CLERK 08/19/2022 11:19 AM INDEX NO. 157094/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/19/2022 21. Defendant is in the C line, which will have three areas that are opened as part of the work: A. The bathroom wet wall opened (wall with the sink, toilet and tub plumbing behind it) from floor to ceiling; B. The bedroom wall (4’ wide opening from floor to ceiling) directly behind the kitchen sink, under the sink to connect to the new plumbing riser; and C. The living room corner near the balcony to replace the balcony storm leader. 22. The following is the process and flow of the plumbing riser replacement work: A. Day 1: Move furniture & inspect for leaky valves. Install temporary protection; B. Day 2:Demolition and wall opening; C. Day 3-5: Plumbing riser replacement and fire stopping; D. Day 6-11: DOB inspection for plumbing, fire stopping inspection, project engineer inspection E. Day 12-16: Restoration – Framing, wallboard, taping, prime & paint, shower rod, medicine cabinet, and GFCI outlet; and F. Day 17: Punch List & final inspection by project Architect, sign off. 23. Unfortunately, Defendant has refused to comply with Esplanade’s repeated requests for access. 24. Defendant’s refusal to allow access is highly disruptive to the other residents in the Building in that, as a general matter, the plumbing risers are being replaced because the system has sewer backup issues, causing this issue to continue and disrupting the all of the other residents in the F Line. 25. The refusal of Defendant to cooperate with Esplanade’s demands for access has prevented the work to complete the Project from occurring. AS AND FOR A FIRST CAUSE OF ACTION FOR BREACH OF CONTRACT (TRO, Preliminary and Permanent Injunctive Relief) 26. Plaintiff repeats and realleges each and every allegation contained in Paragraphs 1 through 25 as if set forth at length herein. {00409173;2 } 6 6 of 10 FILED: NEW YORK COUNTY CLERK 08/19/2022 11:19 AM INDEX NO. 157094/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/19/2022 27. Pursuant to the Occupancy Agreement, the Esplanade has the right to enter, use and occupy the apartments in order to perform the work for the Project. 28. Esplanade has notified Defendant that she must provide unrestricted access to her apartment for the Project, which cannot be completed without such access. 29. To date, Defendant has failed to provide access to the Apartment for the work for the Project, in breach of her obligations under the Occupancy Agreement. 30. Defendant’s conduct in refusing to provide access has caused and will continue to cause Esplanade to suffer irreparable harm in that it will be prevented from performing work for the Project, which work is necessary to repair and safely maintain the Building. 31. Esplanade has no adequate remedy at law for Defendant’s breach of the Occupancy Agreement. 32. Accordingly, Esplanade is entitled to a temporary restraining order and a preliminary and permanent injunctive relief requiring Defendant to provide immediate access to Esplanade and its agents, representatives and contractors and to continue to provide access of each and every future date that she is notified that such access is required to perform work for the Project. 33. Moreover, Esplanade is entitled to a temporary restraining order, and a preliminary and permanent injunctive relief allowing Esplanade and its agents, representatives and contractors, to enter the Apartments forcibly in order to perform the work for the Project in the event that Defendant, (i) refuses to provide access on the noticed dates, (ii) is not present to permit access on such dates that access is required or (iii) otherwise fails to response to Defendant’s future notices for access. AS AND FOR A SECOND CAUSE OF ACTION (For A Declaratory Judgment) 34. Plaintiff repeats and realleges each and every allegation contained in Paragraphs 1 through 33 as if set forth at length herein. {00409173;2 } 7 7 of 10 FILED: NEW YORK COUNTY CLERK 08/19/2022 11:19 AM INDEX NO. 157094/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/19/2022 35. Based upon the foregoing, the Esplanade has the right and the obligation under the Occupancy Agreement to enter the Apartment in order to perform the work for the Project. 36. The work is absolutely necessary in order to complete the Project. 37. Defendant has either refused to comply with or otherwise failed to respond to Esplanade’s many demands for access. 38. An actual controversy exists as between Esplanade and Defendant. 39. Esplanade has no adequate remedy at law. 40. Accordingly, Esplanade is entitled to a judgment from the Court pursuant to CPLR 3001, et seq., declaring that (i) Defendant is required to provide immediate access to Esplanade and its agents, representatives and contractors and to continue to provide access on each and every future date that Defendant is notified that such access is required to perform work for the Project, and (ii) allowing Esplanade and its agents, representatives and contractors, to enter the apartment of Defendant, forcibly, in order to perform the work for the Project in the event that Defendant, (A) refuses to provide access on the noticed dates, (B) is not present to permit access on such dates that access is required, or (C) otherwise fails to respond to Esplanade’s future notices for access. AS AND FOR A THIRD CAUSE OF ACTION FOR BREACH OF CONTRACT (Monetary Damages) 41. Plaintiff repeats and realleges each and every allegation contained in Paragraphs 1 through 40 as if set forth at length herein. 42. Pursuant to the Occupancy Agreement, the Esplanade has the right to enter, use and occupy the apartments in order to perform the work for the Project. 43. Esplanade has notified Defendant that she must provide unrestricted access to the Apartment for the Project, which cannot be completed without such access. {00409173;2 } 8 8 of 10 FILED: NEW YORK COUNTY CLERK 08/19/2022 11:19 AM INDEX NO. 157094/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/19/2022 44. Defendant breached her obligations under the Occupancy Agreement by refusing or otherwise failing to provide access to the apartments for the Project. 45. As a result of the lack of access to the Apartment, Esplanade has incurred damages and will continue to incur additional damages until such time as Defendant allows access to the Apartment. 46. Such damages are a direct and proximate result of Defendant’s refusal to provide access, and the damages would not have been incurred by Esplanade but for Defendant’s breach of her obligations under the Occupancy Agreement. 47. Accordingly, Esplanade is entitled to an award of money damages against Defendant in an amount to be determined at the time of trial. AS AND FOR A FOURTH CAUSE OF ACTION FOR BREACH OF CONTRACT (Attorneys’ Fees and Costs) 48. Plaintiff repeats and realleges each and every allegation contained in Paragraphs 1 through 47 as if set forth at length herein. 49. Pursuant to Paragraph Sixteenth of the Occupancy Agreement, Esplanade shall be entitled to recover itscosts and expenses, including reasonable attorneys’ fees, incurred as a result of Defendant’s default or breach of the terms of the Occupancy Agreement. 50. Defendant’s conduct in failing or refusing to provide access to the Apartment in order for Esplanade to perform the work for the Project constitutes a default and breach of the Occupancy Agreement. 51. Esplanade has incurred costs and expenses, including attorneys’ fees, as a result of such default and breach, including the costs and expenses incurred in commencing and prosecuting this action. 52. Accordingly, Esplanade is entitled to a judgment as against Defendant in an amount equal to it costs and expenses, including attorneys’ fees, incurred as a result of Defendant’s default and breach, said to be determined by the trier of fact. {00409173;2 } 9 9 of 10 FILED: NEW YORK COUNTY CLERK 08/19/2022 11:19 AM INDEX NO. 157094/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/19/2022 WHEREFORE, Plaintiff Esplanade Gardens, Inc. respectfully demands judgment against Defendant as follows: (a) On the First Cause of Action, a temporary restraining order, and a preliminary and permanent injunction that (i) Defendant is required to provide immediate access to Esplanade and its agents, representatives and contractors and to continue to provide access of each and every future date that Defendant is notified that such access is required to perform work for the Project; (ii) allowing Esplanade and its agents, representatives and contractors, to enter the apartment of Defendant, forcibly, in order to perform the work for the Project in the event that Defendant, (A) refuses to provide access on the noticed dates, (B) is not present to permit access on such dates that access is required, or (C) otherwise fails to respond to Esplanade’s future notices for access. (b) On the Second Cause of Action, a judgment from the Court pursuant to CPLR 3001, et seq., declaring that (i) Defendant is required to provide immediate access to Esplanade and its agents, representatives and contractors and to continue to provide access of each and every future date that Defendant is notified that such access is required to perform work for the Project; (ii) allowing Esplanade and its agents, representatives and contractors, to enter the apartment of Defendant, forcibly, in order to perform the work for the Project in the event that Defendant, (A) refuses to provide access on the noticed dates, (B) is not present to permit access on such dates that access is required, or (C) otherwise fails to respond to Esplanade’s future notices for access; (c) On the Third Cause of Action, an award of money damages against Defendant in an amount to be determined at the time of trial; (d) On the Fourth Cause of Action, an award of reasonable costs and attorneys’ fees in an amount to be determined by the Court; and (e) Such other and further relief as the Court deems just and proper. Dated: New York, New York August 18, 2022 KAGAN LUBIC LEPPER FINKELSTEIN & GOLD, LLP Attorneys for Plaintiff By: Joseph Mitchell Joseph P. Mitchell, Esq. 200 Madison Avenue, 24th Floor New York, New York 10016 (212) 252-0300 jmitchell@kll-law.com {00409173;2 } 10 10 of 10