Preview
FILED: NEW YORK COUNTY CLERK 09/07/2022 05:44 PM INDEX NO. 157094/2022
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 09/07/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
_______________________________-_____________________________________________Ç
ESPLANADE GARDENS, INC.,
Index No.: /2022
Plaintiff,
AFFIDAVIT OF
- against - IN SUPPORT OF ORDER
TO SHOW CAUSE
JOCELYN NIXON,
Defendant.
______________-______________..._____________________________________________Ç
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
NICOLE DUNCAN, being duly sworn, affirms the following under the penalty
of perjury:
1. I am employed by Metro Management Development, Inc., which serves as the
Property Manager for Esplanade Gardens, Inc. (hereinafter, "Esplanade"), a Mitchell-Lama
affordable cooperative housing corporation. As such, I am fully familiar with the facts and
circumstances set forth herein. I submit this Affidavit in support of Esplanade's Order to Show
Cause.
2. Esplanade is currently undergoing a capital improvement project currently being
undertaken at 2541 Seventh Avenue, New York, New York ("Building"). Esplanade recently
hired Horrigan Development LLC (hereinafter, "Horrigan") as the owner's representative,
Horrigan took over as the owner's representative on October 1, 2020 from its predecessor Vista
Construction & Environmental Group Inc. (hereinafter, "Vista"). This Affidavit is submitted on
behalf of Esplanade in support of its order to show cause seeking access to apartment #20C
{00409140;4 }
1 of 5
FILED: NEW YORK COUNTY CLERK 09/07/2022 05:44 PM INDEX NO. 157094/2022
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 09/07/2022
("Apartment") located in the Building so that work to the plumbing riser and the Project can
proceed without further undue delays and expense.
3. 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"),
4. 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.
5. Defendant Jocelyn Nixon ("Defendant") is the shareholder of the Apartment
located in the Building pursuant to her occupancy agreement dated October 11, 1994. A copy of
the Occupancy Agreement is annexed hereto as Exhibit A.
6. Horrigan was retained by Esplanade to act as the owner's representative of the
Project at its six-building complex in upper Manhattan (Harlem), which includes the Building.
The capital improvements to Esplanade's buildings were to be staggered from one building to the
next during the course of the Project.
7. The Project involves major capital improvements to the buildings, including
replacing old and failing plumbing risers, installing new, code-compliant electrical outlets and
service, and performing structural repairs to the concrete balconies. The Department of Housing
Preservation and Development (hereinafter, "HPD") has reviewed and approved the scope of
work of the Project, HPD has approved the financing and HPD has approved the contractors
working on the Project, along with the associated contracts entered into between the parties.
{00409140;4} 2
2 of 5
FILED: NEW YORK COUNTY CLERK 09/07/2022 05:44 PM INDEX NO. 157094/2022
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 09/07/2022
8. The Project requires a high degree of coordination among the several contractors
and is dependent upon obtaining access to each apartment where work is required. The estimated
Project costs are $110,000,000. Without access to each apartment, the Project cannot be
performed or completed and Esplanade is forced to incur additional and avoidable expense.
9. Starting in February 2019, Esplanade notified the residents of the Building of the
upcoming capital improvement project and requested that they provide access to allow Vista to
conduct an inspection of the apartments to prepare for and coordinate Esplanade's capital
improvement project.
10. Thereafter, the Covid-19 pandemic caused the Project to be suspended in or about
March 2020. Once the Project resumed and Horrigan commenced contacting the residents of the
Building to gain access to finish the plumbing work.
11. Defendant has failed to provide access as demanded.
12. 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 all of the other
residents in the C Line. In addition, Defendant's delay will monetarily cost Plaintiff.
13. In addition, Defendant's refusal to provide access is directly impacting the
shareholder living above her, as the shareholder's walls are opened and cannot be closed until the
work is performed in the Apartment.
14. It is imperative that access be provided in order to allow Esplanade to complete
the capital improvement project, which will benefit all shareholders and residents of Esplanade.
15. Esplanade has set forth in its pleading that Defendant is in breach of her contractual
duties pursuant to the Occupancy Agreement, each of which have the same terms and conditions.
{00409140;4 } 3
3 of 5
FILED: NEW YORK COUNTY CLERK 09/07/2022 05:44 PM INDEX NO. 157094/2022
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 09/07/2022
16. Paragraph Fourteenth of the Occupancy Agreement outline the "Members Duties
Obligations"
and and provides that each shareholder, cooperator and occupant 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:
(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.
17. Paragraph Fifteenth (1) of the Occupancy Agreement further states:
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 (ifduring 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.
18. The Defendant is in breach of these provisions in that she has repeatedly refused
or otherwise failed to provide Esplanade with access to the Apartment for the performance of the
work for the Project.
(00409140;4 }
4 of 5
FILED: NEW YORK COUNTY CLERK 09/07/2022 05:44 PM INDEX NO. 157094/2022
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 09/07/2022
19. Equitable relief is required as Esplanade has no available remedy at law. No prior
application for the relief sought herein has been made previously.
NICOLE DUNC
Sworn to before me this
Z ÛSday of August, 2022
JANELLE L HARRIS
NOTARY PUBUC, STATE OF NEW
YORK
RegistrationNo. 01HA6347999
otary Public
In Westchester
Qualified
Cnmm don County
Expires September
19, 20-
{00409140;4}
5 of 5
Preview
FILED: NEW YORK COUNTY CLERK 09/07/2022 05:44 PM INDEX NO. 157094/2022 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 09/07/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK _______________________________-_____________________________________________Ç ESPLANADE GARDENS, INC., Index No.: /2022 Plaintiff, AFFIDAVIT OF - against - IN SUPPORT OF ORDER TO SHOW CAUSE JOCELYN NIXON, Defendant. ______________-______________..._____________________________________________Ç STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) NICOLE DUNCAN, being duly sworn, affirms the following under the penalty of perjury: 1. I am employed by Metro Management Development, Inc., which serves as the Property Manager for Esplanade Gardens, Inc. (hereinafter, "Esplanade"), a Mitchell-Lama affordable cooperative housing corporation. As such, I am fully familiar with the facts and circumstances set forth herein. I submit this Affidavit in support of Esplanade's Order to Show Cause. 2. Esplanade is currently undergoing a capital improvement project currently being undertaken at 2541 Seventh Avenue, New York, New York ("Building"). Esplanade recently hired Horrigan Development LLC (hereinafter, "Horrigan") as the owner's representative, Horrigan took over as the owner's representative on October 1, 2020 from its predecessor Vista Construction & Environmental Group Inc. (hereinafter, "Vista"). This Affidavit is submitted on behalf of Esplanade in support of its order to show cause seeking access to apartment #20C {00409140;4 } 1 of 5 FILED: NEW YORK COUNTY CLERK 09/07/2022 05:44 PM INDEX NO. 157094/2022 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 09/07/2022 ("Apartment") located in the Building so that work to the plumbing riser and the Project can proceed without further undue delays and expense. 3. 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"), 4. 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. 5. Defendant Jocelyn Nixon ("Defendant") is the shareholder of the Apartment located in the Building pursuant to her occupancy agreement dated October 11, 1994. A copy of the Occupancy Agreement is annexed hereto as Exhibit A. 6. Horrigan was retained by Esplanade to act as the owner's representative of the Project at its six-building complex in upper Manhattan (Harlem), which includes the Building. The capital improvements to Esplanade's buildings were to be staggered from one building to the next during the course of the Project. 7. The Project involves major capital improvements to the buildings, including replacing old and failing plumbing risers, installing new, code-compliant electrical outlets and service, and performing structural repairs to the concrete balconies. The Department of Housing Preservation and Development (hereinafter, "HPD") has reviewed and approved the scope of work of the Project, HPD has approved the financing and HPD has approved the contractors working on the Project, along with the associated contracts entered into between the parties. {00409140;4} 2 2 of 5 FILED: NEW YORK COUNTY CLERK 09/07/2022 05:44 PM INDEX NO. 157094/2022 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 09/07/2022 8. The Project requires a high degree of coordination among the several contractors and is dependent upon obtaining access to each apartment where work is required. The estimated Project costs are $110,000,000. Without access to each apartment, the Project cannot be performed or completed and Esplanade is forced to incur additional and avoidable expense. 9. Starting in February 2019, Esplanade notified the residents of the Building of the upcoming capital improvement project and requested that they provide access to allow Vista to conduct an inspection of the apartments to prepare for and coordinate Esplanade's capital improvement project. 10. Thereafter, the Covid-19 pandemic caused the Project to be suspended in or about March 2020. Once the Project resumed and Horrigan commenced contacting the residents of the Building to gain access to finish the plumbing work. 11. Defendant has failed to provide access as demanded. 12. 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 all of the other residents in the C Line. In addition, Defendant's delay will monetarily cost Plaintiff. 13. In addition, Defendant's refusal to provide access is directly impacting the shareholder living above her, as the shareholder's walls are opened and cannot be closed until the work is performed in the Apartment. 14. It is imperative that access be provided in order to allow Esplanade to complete the capital improvement project, which will benefit all shareholders and residents of Esplanade. 15. Esplanade has set forth in its pleading that Defendant is in breach of her contractual duties pursuant to the Occupancy Agreement, each of which have the same terms and conditions. {00409140;4 } 3 3 of 5 FILED: NEW YORK COUNTY CLERK 09/07/2022 05:44 PM INDEX NO. 157094/2022 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 09/07/2022 16. Paragraph Fourteenth of the Occupancy Agreement outline the "Members Duties Obligations" and and provides that each shareholder, cooperator and occupant 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: (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. 17. Paragraph Fifteenth (1) of the Occupancy Agreement further states: 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 (ifduring 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. 18. The Defendant is in breach of these provisions in that she has repeatedly refused or otherwise failed to provide Esplanade with access to the Apartment for the performance of the work for the Project. (00409140;4 } 4 of 5 FILED: NEW YORK COUNTY CLERK 09/07/2022 05:44 PM INDEX NO. 157094/2022 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 09/07/2022 19. Equitable relief is required as Esplanade has no available remedy at law. No prior application for the relief sought herein has been made previously. NICOLE DUNC Sworn to before me this Z ÛSday of August, 2022 JANELLE L HARRIS NOTARY PUBUC, STATE OF NEW YORK RegistrationNo. 01HA6347999 otary Public In Westchester Qualified Cnmm don County Expires September 19, 20- {00409140;4} 5 of 5