Preview
FILED: WESTCHESTER COUNTY CLERK 06/07/2024 03:50 PM INDEX NO. 63697/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/07/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTYOFWESTCHESTER x Index No.:
: Date Purchased
BOARDOFMANAGERS
OFEAGLEBAY :
CONDOMINIUM, : Plaintiff designates Westchester
: County as the place of trial.
Plaintiff, : The basis of venue is
: residence of plaintiff and
-against- : defendant.
:
JOSEPHLUCANIA, :
:
SUMMONS
Defendant. :
Plaintiff's principal office is 75
------------------------------------------------------------------------------- x South
Greely Avenue,
Chappaqua, NY
County of Westchester
To the above-named Defendant,
You hereby summoned to answer the complaint in this action and to serve a copy of
are
your answer, or if the complaint is not served with this summons, to serve a notice of appearance
on the Plaintiff's Attorney 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 NewYork); 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.
Dated, June 7, 2024
GETTINGERWALDINGER
MONTELEONE &
GUSHUE
HOLLIS, LLP
Attorneys for Pla , ff
By:
Steven È Waldinger
118 North Bedford Road
Mount Kisco, NY 10549
Defendant's address:
805 Eagle Bay Drive
Ossining, NY
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FILED: WESTCHESTER COUNTY CLERK 06/07/2024 03:50 PM INDEX NO. 63697/2024
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTYOFWESTCHESTER
________________ -------
x
OFEAGLEBAY
BOARDOFMANAGERS :
CONDOMINIUM,
:
Plaintiff, :
: VERIFIED COMPLAINT
-against- :
JOSEPHLUCANIA, :
:
Defendant. :
____--_________________----_______-_________.--------------______---.._________ Ç
Plaintiff Board of Managers of Eagle Bay Condominium ("Eagle Bay" or
the
"Condominium"), alleges:
First Cause of Action
(Declaratory Judgment)
1. Eagle Bay is a Condominium formed pursuant to Article 9B of the Real Property
Law.
2. Eagle Bay is governed by a Declaration (the "Declaration"), a copy of which is
annexed as Exhibit A, and By-Laws, a copy of which is annexed as Exhibit B.
3. Eagle Bay is managed by a Board of Managers (the "Board") pursuant to the By-
Laws.
4. Barhite and Holzinger, Inc. is the managing agent of Eagle Bay.
5. Defendant Joseph Lucania ("Lucania") is the owner of Unit 5-A located within the
Condominium at 805 Eagle Bay Drive, Ossining, NewYork (the "Unit").
6. Pursuant to Article 15 of the Declaration, Lucania, as the owner of the Unit, is
subject to the provisions of the Declaration and By-Laws.
7. Article II, Section 2 of the By-Laws provides, in part, that:
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FILED: WESTCHESTER COUNTY CLERK 06/07/2024 03:50 PM INDEX NO. 63697/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/07/2024
The Board of Managers have the powers and duties necessary for the
shall
administration of the of the Condominium...the
affairs powers and duties...shall
include...(a) [the] operation, care, upkeep, and maintenance of the common
elements...(m) enforcing obligations of the Unit Owners, allocating profits and
expenses, and doing anything else necessary and proper for the sound management
of the Condominium.
8. Pursuant to Article 6(b) of the Declaration, "all foundations, columns, girders,
supports"
beams, [and] are commonelements of the Condominium.
9. Article VI, Section 15 of the By-Laws provides, in part, that:
A Unit Owner shall grant a right of access to his Unit to the Board of
Managers, the manager and/or managing agent and/or any other person
authorized by the Board of Managers, for the purpose of making inspections
to determine if there exist conditions threatening another Unit or a Common
Element, or violations of the By-laws or Rules and Regulations of the
Condominium or any State or Municipal ordinances, or for the purpose of
correcting any conditions originating in his Unit and threatening another
Unit or a Common Element...provided that requests for such entry are made
inadvance and that any such entry is at a time reasonably convenient to the
Unit Owner.
10. In 2019, the weight of Lucania's massive collection of books helped cause
structural damage to a beam located in the basement of the Unit. Annexed as Exhibit C is a copy
of the Engineer's Report following the aftermath of the damage.
11. The beam was repaired, and Lucania and the Board signed a General Release on
June 4, 2020. A copy of the General Release is annexed as Exhibit D.
12. According to Lucania's lawyer, Lucania had removed several bookshelves from the
Unit prior to the signing of the General Release. Annexed as Exhibit E is the email correspondence
from Lucania's lawyer.
13. In or about March 2023, the Board contacted Lucania to arrange an inspection of
the Unit. Lucania's lawyer denied the arrangement and demanded a reason for the inspection to
verify that the bookshelves were removed and that Lucania had not begun to collect more books.
2
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NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/07/2024
14. In July 2023 and December 2023, the Board, through its lawyers, informed Lucania
that after repairs were made to a beam in the Unit that had sustained structural damage due to the
weight of Lucania's books, it needed to inspect the Unit to ensure that the weight capacity of the
Unit was not being exceeded. A copy of the July 2023 and December 2023 letters are collectively
annexed as Exhibit F.
15. Lucania has and continues to refuse the Board access to the Unit as required by the
By-laws by refusing the Board's request for an inspection and threatening legal action if the Board
insists on exercising its rights pursuant to the Condominium's governing documents. Annexed as
Exhibit Gis a copy of a letter from Lucania's lawyer threatening legal action.
16. Lucania's actions have and continue to interfere with the Board's right to maintain
the conunon elements of Eagle Bay and ensure that nothing in the Unit will impair its structural
integrity.
17. As a result of the foregoing, Lucania has, and continues to, wrongfully interfere
with the rights of the Board to operate and manage Eagle Bay.
18. The Board does not have an adequate remedy at law.
19. The Board is entitled to a declaratory judgment that Lucania's actions have
interfered and continue to interfere with the Board's rights and obligations under the Declaration
and By-Laws and that the Board has a right to enter Lucania's Unit for the purpose of making
inspections to determine if there exist conditions threatening another unit or a commonelement
and for the purpose of correcting any condition originating in the Unit that threatens another unit
or a commonelement.
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NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/07/2024
Second Cause of Action
(Permanent Injunction)
20. The Board has been and continues to be irreparably harmed as a result of Lucania's
acts.
21. Lucania must be permanently enjoined from interfering with the Board's right to
operate and manage Eagle Bay and compelling Lucania to permit the Board access to the Unit for
the purpose of making inspections to determine if there exist conditions threatening another unit
or a commonelement and to correct any conditions originating in the Unit that threatens another
unit or a commonelement.
WHEREFORE,
pursuant to CPLR§ 6303 plaintiff demandsjudgment:
1. On the first cause of action, declaring that Lucania's actions have interfered and
continue to interfere with the Board's rights and obligations under the Declaration and By-Laws
and that the Board has a right to access Lucania's Unit for the purpose of making inspections to
determine if there exist conditions threatening another unit or a common element and for the
purpose of correcting any condition originating in the Unit that threatens another unit or a common
element;
2. On the second cause of action, permanently enjoining Lucania from interfering with
the Board's right to operate and manage Eagle Bay and compelling Lucania to permit the Board
access to the Unit for the purpose of making inspections for the purpose of determining if there
exist conditions threatening another unit or a common element and to correct any conditions
originating in the Unit that threatens another unit or a commonelement; and
3. Granting the Board such other and further relief as the Court deems appropriate.
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FILED: WESTCHESTER COUNTY CLERK 06/07/2024 03:50 PM INDEX NO. 63697/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/07/2024
Dated: Mount Kisco, NewYork
June 7, 2024
GETTINGERWALDINGER
MONTELEONE & HOLLIS,
GUSHUE
B
Steven E. Waldinger
118 North Bedford Road
Mount Kisco, NY 10549
(914) 666-8033
5
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Preview
FILED: WESTCHESTER COUNTY CLERK 06/07/2024 03:50 PM INDEX NO. 63697/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/07/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTYOFWESTCHESTER x Index No.: : Date Purchased BOARDOFMANAGERS OFEAGLEBAY : CONDOMINIUM, : Plaintiff designates Westchester : County as the place of trial. Plaintiff, : The basis of venue is : residence of plaintiff and -against- : defendant. : JOSEPHLUCANIA, : : SUMMONS Defendant. : Plaintiff's principal office is 75 ------------------------------------------------------------------------------- x South Greely Avenue, Chappaqua, NY County of Westchester To the above-named Defendant, You hereby summoned to answer the complaint in this action and to serve a copy of are your answer, or if the complaint is not served with this summons, to serve a notice of appearance on the Plaintiff's Attorney 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 NewYork); 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. Dated, June 7, 2024 GETTINGERWALDINGER MONTELEONE & GUSHUE HOLLIS, LLP Attorneys for Pla , ff By: Steven È Waldinger 118 North Bedford Road Mount Kisco, NY 10549 Defendant's address: 805 Eagle Bay Drive Ossining, NY 1 of 6 FILED: WESTCHESTER COUNTY CLERK 06/07/2024 03:50 PM INDEX NO. 63697/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/07/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTYOFWESTCHESTER ________________ ------- x OFEAGLEBAY BOARDOFMANAGERS : CONDOMINIUM, : Plaintiff, : : VERIFIED COMPLAINT -against- : JOSEPHLUCANIA, : : Defendant. : ____--_________________----_______-_________.--------------______---.._________ Ç Plaintiff Board of Managers of Eagle Bay Condominium ("Eagle Bay" or the "Condominium"), alleges: First Cause of Action (Declaratory Judgment) 1. Eagle Bay is a Condominium formed pursuant to Article 9B of the Real Property Law. 2. Eagle Bay is governed by a Declaration (the "Declaration"), a copy of which is annexed as Exhibit A, and By-Laws, a copy of which is annexed as Exhibit B. 3. Eagle Bay is managed by a Board of Managers (the "Board") pursuant to the By- Laws. 4. Barhite and Holzinger, Inc. is the managing agent of Eagle Bay. 5. Defendant Joseph Lucania ("Lucania") is the owner of Unit 5-A located within the Condominium at 805 Eagle Bay Drive, Ossining, NewYork (the "Unit"). 6. Pursuant to Article 15 of the Declaration, Lucania, as the owner of the Unit, is subject to the provisions of the Declaration and By-Laws. 7. Article II, Section 2 of the By-Laws provides, in part, that: 2 of 6 FILED: WESTCHESTER COUNTY CLERK 06/07/2024 03:50 PM INDEX NO. 63697/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/07/2024 The Board of Managers have the powers and duties necessary for the shall administration of the of the Condominium...the affairs powers and duties...shall include...(a) [the] operation, care, upkeep, and maintenance of the common elements...(m) enforcing obligations of the Unit Owners, allocating profits and expenses, and doing anything else necessary and proper for the sound management of the Condominium. 8. Pursuant to Article 6(b) of the Declaration, "all foundations, columns, girders, supports" beams, [and] are commonelements of the Condominium. 9. Article VI, Section 15 of the By-Laws provides, in part, that: A Unit Owner shall grant a right of access to his Unit to the Board of Managers, the manager and/or managing agent and/or any other person authorized by the Board of Managers, for the purpose of making inspections to determine if there exist conditions threatening another Unit or a Common Element, or violations of the By-laws or Rules and Regulations of the Condominium or any State or Municipal ordinances, or for the purpose of correcting any conditions originating in his Unit and threatening another Unit or a Common Element...provided that requests for such entry are made inadvance and that any such entry is at a time reasonably convenient to the Unit Owner. 10. In 2019, the weight of Lucania's massive collection of books helped cause structural damage to a beam located in the basement of the Unit. Annexed as Exhibit C is a copy of the Engineer's Report following the aftermath of the damage. 11. The beam was repaired, and Lucania and the Board signed a General Release on June 4, 2020. A copy of the General Release is annexed as Exhibit D. 12. According to Lucania's lawyer, Lucania had removed several bookshelves from the Unit prior to the signing of the General Release. Annexed as Exhibit E is the email correspondence from Lucania's lawyer. 13. In or about March 2023, the Board contacted Lucania to arrange an inspection of the Unit. Lucania's lawyer denied the arrangement and demanded a reason for the inspection to verify that the bookshelves were removed and that Lucania had not begun to collect more books. 2 3 of 6 FILED: WESTCHESTER COUNTY CLERK 06/07/2024 03:50 PM INDEX NO. 63697/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/07/2024 14. In July 2023 and December 2023, the Board, through its lawyers, informed Lucania that after repairs were made to a beam in the Unit that had sustained structural damage due to the weight of Lucania's books, it needed to inspect the Unit to ensure that the weight capacity of the Unit was not being exceeded. A copy of the July 2023 and December 2023 letters are collectively annexed as Exhibit F. 15. Lucania has and continues to refuse the Board access to the Unit as required by the By-laws by refusing the Board's request for an inspection and threatening legal action if the Board insists on exercising its rights pursuant to the Condominium's governing documents. Annexed as Exhibit Gis a copy of a letter from Lucania's lawyer threatening legal action. 16. Lucania's actions have and continue to interfere with the Board's right to maintain the conunon elements of Eagle Bay and ensure that nothing in the Unit will impair its structural integrity. 17. As a result of the foregoing, Lucania has, and continues to, wrongfully interfere with the rights of the Board to operate and manage Eagle Bay. 18. The Board does not have an adequate remedy at law. 19. The Board is entitled to a declaratory judgment that Lucania's actions have interfered and continue to interfere with the Board's rights and obligations under the Declaration and By-Laws and that the Board has a right to enter Lucania's Unit for the purpose of making inspections to determine if there exist conditions threatening another unit or a commonelement and for the purpose of correcting any condition originating in the Unit that threatens another unit or a commonelement. 3 4 of 6 FILED: WESTCHESTER COUNTY CLERK 06/07/2024 03:50 PM INDEX NO. 63697/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/07/2024 Second Cause of Action (Permanent Injunction) 20. The Board has been and continues to be irreparably harmed as a result of Lucania's acts. 21. Lucania must be permanently enjoined from interfering with the Board's right to operate and manage Eagle Bay and compelling Lucania to permit the Board access to the Unit for the purpose of making inspections to determine if there exist conditions threatening another unit or a commonelement and to correct any conditions originating in the Unit that threatens another unit or a commonelement. WHEREFORE, pursuant to CPLR§ 6303 plaintiff demandsjudgment: 1. On the first cause of action, declaring that Lucania's actions have interfered and continue to interfere with the Board's rights and obligations under the Declaration and By-Laws and that the Board has a right to access Lucania's Unit for the purpose of making inspections to determine if there exist conditions threatening another unit or a common element and for the purpose of correcting any condition originating in the Unit that threatens another unit or a common element; 2. On the second cause of action, permanently enjoining Lucania from interfering with the Board's right to operate and manage Eagle Bay and compelling Lucania to permit the Board access to the Unit for the purpose of making inspections for the purpose of determining if there exist conditions threatening another unit or a common element and to correct any conditions originating in the Unit that threatens another unit or a commonelement; and 3. Granting the Board such other and further relief as the Court deems appropriate. 4 5 of 6 FILED: WESTCHESTER COUNTY CLERK 06/07/2024 03:50 PM INDEX NO. 63697/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/07/2024 Dated: Mount Kisco, NewYork June 7, 2024 GETTINGERWALDINGER MONTELEONE & HOLLIS, GUSHUE B Steven E. Waldinger 118 North Bedford Road Mount Kisco, NY 10549 (914) 666-8033 5 6 of 6