Motion for Stipulated Judgment in Beechwood Plainview Old Bethpage Llc, Country Pointe At Plainview Homeowners Association, Inc., Board Of Managers Of Country Pointe At Plainview Condominium Ii v. Jay Grindell, Sandra Sander| Trellis.Law

On January 31, 2019 a Order to Show Cause was filed involving a dispute between Beechwood Plainview Old Bethpage Llc, Board Of Managers Of Country Pointe At Plainview Condominium Ii, Country Pointe At Plainview Homeowners Association, Inc., and Jay Grindell, Sandra Sander, for Real Property - Other (Injunction) in the District Court of Nassau County.

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FILED: NASSAU COUNTY CLERK 01/31/2019 01:23 PM INDEX NO. 601500/2019
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 01/31/2019

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
----X
BEECHWOOD PLAINVIEW OLD BETHPAGE Index No.

LLC, COUNTRY POINTE AT PLAINVIEW
HOMEOWNERS ASSOCIATION, INC., KATZ AFFIRMATION IN
PLAINTIFFS'
and THE BOARD OF MANAGERS OF SUPPORT OF
COUNTRY POINTE AT PLAINVIEW ORDER TO SHOW CAUSE
CONDOMINIUM II

Plaintiffs,

-against-

JAY GRINDELL and SANDRA SANDER,

Defendants.
--------------- ----------- -- X

DANIEL E. KATZ, an attorney duly admitted to practice law in the Courts of this State,

affirms under penalty of perjury as follows:

1. I am a member of the law firm of Rich, Intelisano & Katz, LLP, counsel for

Plaintiffs Beechwood Plainview Old Bethpage LLC (the "Sponsor"), Country Pointe at Plainview

Homeowners Association, Inc. (the "Association"), and Board of Mañagers of County Pointe at

Plainview Condominium II (the "Board of Managers"). I submit this Affirmation, based upon

Plaintiffs'
personal knowledge and records on file in my office, in support of application seeking,

inter alia, an injunction directing the Defendants Jay Grindell and Sandra Sander (collectively,

"Defendants") to provide the Sponsor, Association, Board of Managers, and their respective

employees, contractors, consultants and suppliers, reasonable access into the premises known as

"Defendants'
37103 Winterberry Drive, Plainview, New York, (the Unit"), located within the

condominium community known as County Pointe at Plainview Condominium II (the "Condo

II"), for the purpose of performing maintenance, repairs and/or improvements (the "Work") of the

Defendants'
area between the drywall of the Unit's ceiling and the subfloor of Unit 37203, which

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Defendants'
is directly above the Unit and is owned by Cynthia Sakolsky (the "Sakolsky Unit");

and/or a license, pursuant to Real Property Actions and Proceedings Law ("RPAPL") §§ 881 and

339-i, granting Plaintiffs and their respective employees, contractors, consultants and suppliers,

Defendants'
temporary access to the Unit for the purpose of performing the Work.

2. Despite very clear and unambiguous language in the Condo's governing documents

the Association and/or the Board of Managers - both of which the Sponsor has control of
granting

at this time - the right of access which seek this Order to Show Defendants have
they by Cause,

repeatedly and wrongfully denied the Plaintiffs such access. Moreover, because Plaintiffs seek to

make improvements or repairs to real property so situated that such improvements or repairs

Defendants' Defendants'
cannot be made without access to the Unit, and have refused such access,

Plaintiffs are also entitled, pursuant to RPAPL §§ 881 and 339-i, to a license for temporary access

to Defendant's Unit.

3. As detailed in the accompanying Affidavit of Michael Adler (the "Adler Aff."),

Defendants' Plaintiffs'
willful refusal to permit access is causing irreparable injury and harm.

Defendants'
Thus, the Plaintiffs seek an order: (a) enabling Plaintiffs to enter the Unit to perform

Plaintiffs' attorneys'
the Work; and (b) requiring Defendants to pay fees, costs and disbursements

associated with this action.

RELEVANT BACKGROUND

4. Condo II is a condominium formed pursuant to Article 9-B of the Real Property

Law of the State of New York. It is governed by, inter alia, the "Declaration of Covenants,

Liens,"
Restrictions, Easements, Charges and which was recorded on February 21, 2018 in Liber

13623 Page 282 in the Office of the Clerk of Nassau County (the "HOA Declaration"), as well as

Condominium"
the "Declaration of recorded on February 21, 2018 in Liber 13632 Page 226 in the

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Office of the Clerk of Nassau County (the "Condo Declaration") (collectively, the HOA

Declaration and the Condo Declaration are referred to herein as the "Governing Documents"). The

HOA Declaration is annexed hereto as Exhibit A, and the Condo Declaration is annexed hereto as

Exhibit B.

"Homes"
5. Condo IIconsists of 107 located within 13 buildings, and is part of an

umbrella homeowners association (the "Community"). See Exhibit B, Condo Declaration, Section

Fourth.

"Home"
6. Each within the Community is "measured horizontally from the exterior

surface of the sheetrock of allopposite walls to the exterior to the exterior surface of the sheetrock

all of opposite walls and vertically from the lower surface of the concrete slab or sub-floor forming

the floor of the Home up to the exterior surface of the sheetrock or other material forming the

Home."
ceiling of the See Exhibit B, Condo Declaration, Section Third(b).

7. Condo II's common elements "consist of all of the Community, except the Homes,

including, but without limitation, the outside walls and roofs of the Buildings, the land, buildings

and improvements (other than the Homes) comprising the Community (including the land under

the Homes and under the improvements), all utility or other pipes and materials located outside of

Homes"
the (the "Common Elements"). See Exhibit B, Condo Declaration, Section Fifth.

8. Certain portions of the Common Elements, are irrevocably restricted in use to

Elements,"
specific homeowners as "Limited Common but even those Limited Common Elements

are "subject to the right of the Board of Managers to enter upon any restricted area for maintenance,

repair or improvement of a Home or [C]ommon [E]lement and subject to the rules of the Board of

Managers."
See Exhibit B, Condo Declaration, Section Fifth.

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9. The Board of Managers has the "right of access to each Home for maintenance,

repair or improvements to any pipes, wires, conduits and public utility lines located in any Home

Home."
and servicing any other See Exhibit B, Condo Declaration, Section Sixth. The Board of

Managers also has the "right of access to all [C]ommon [E]lements for maintenance, repair or

not."
improvement whether such [C]ommon [E]lements are restricted or Id.

10. Both the Board of Managers and the Association have the "right of access through,

under, over and across the [C]ommon [E]lements for the purpose of performing any of its

Declaration]." '
obligations as provided for in [the Condo] Declaration or in [the HOA Id

11. Finally, homeowners, such as the Defendants, are required to afford the

Association, any Managing Agent, and/or any other person authorized by the Association or the

Managing Agent, "a right of access to his or her Home on reasonable notice at reasonable hours,

on any day except Sundays and holidays ... for the purposes of performing any work required of

Association."
the Association under [the HOA Declaration] or the By-Laws of the See Exhibit A,

HOA Declaration, Article V, Section 8.

Defendants'
12. Defendants are the owners of the Unit by a deed dated June 13, 2018

("Defendants' Defendants'
and recorded in the Nassau County Clerk's Office Deed"). A copy of

Deed is annexed hereto as Exhibit C.

Defendants'
13. Deed is subject to, inter alia, the HOA Declaration and the Condo

Declaration. Thus, by virtue of its ownership, Defendants agree to be bound by the Governing

Defendants'
Documents. See Exhibit C, Deed.

14. As a result of the foregoing, on or about October 2, 2018, the Condo II's Customer

Defendants'
Service Department contacted the Defendants to arrange for access to the Unit in

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Defendants'
order to make necessary repairs to area between the drywall of the Unit's ceiling, and

the subfloor of the Sakolsky Unit. See Adler Aff., ¶ 5.

15. Thereafter, on or about October 19, 2018, the Sponsor sent a letter to Defendants

Defendants'
notifying them of itsright to access the Unit, and requesting to schedule a mutually

Defendants'
convenient time for such access. See Correspondence from Sponsor to dated October

19, 2018, which is annexed hereto as Exhibit D. Even after receiving such correspondence,

Defendants'
Defendants refused to grant access to the Unit. Adler Aff., ¶ 6.

Plaintiffs' Defendants'
16. Despite repeated attempts to reasonably gain access to the

Unit to perform the Work, as permitted by the Governing Documents, Defendants refused to

permit such access. Adler Aff., ¶ 7.

17. Annexed as Exhibit B to the HOA Declaration are the By-Laws of the Association

(the "Association By-Laws"). Article 7, Section 5 of the Association By-Laws provides the

Association with the power to "bring and defend actions by or against one or more Members [or]

an of theiroccupants and lessees pertinent to the operation of the Association and to assess special

litigation."
assessments to pay the cost of such Exhibit A, HOA Declaration. Annexed as Schedule

D to the Condo Declaration are the By-Laws for the Condo (the "Condo By-Laws"). Article III,

Section 5 of the Condo By-Laws provides the Board of Managers with the power to "bring and

defend actions by or against more than one Homeowner and pertinent to the operation of the

litigation."
Condominium and to level special assessments to pay for the cost of such Exhibit B,

Condo Declaration. Accordingly, the Association and the Board of Managers each have the

authority and entitlement to seek the relief requested herein. For the convenience of the Court,

Plaintiffs'
annexed hereto as Exhibit E isa copy Summons and Complaint.

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PLAINTIFFS ARE ENTITLED TO INJUNCTIVE RELIEF

18. The Plaintiffs are entitled to injunctive relief. "To establish entitlement to a

preliminary injunction, a movant must establish (1) a likelihood or probability of success on the

merits, (2) irreparable harm in the absence of an injunction, and (3) a balance of the equities in

injunction."
favor of granting the Matos v. City of New York, 21 A.D.3d 936, 937, 801 N.Y.S.2d

610, 611 (2d Dep't 2005). Irreparable injury is "any injury for which money damages are

insufficient."
Merkos L'Inyonei Chinuch, Inc. v. Sharf, 11 Misc. 3d 1062(A), 816 N.Y.S.2d 697

(Sup. Ct. 2006), affd as modified, 59 A.D.3d 403, 873 N.Y.S.2d 148 (Sup. Ct. Kings Co. 2009).

19. An injunction can be used to compel the performance of an act."While injunctions

are generally temporary in nature, it istrue that mandatory injunctions usually provide the party

remedy."
with the relief sought as a final In re New York Methodist Hoso., 25 Misc. 3d 648, 653,

885 N.Y.S.2d 392, 396 (Sup. Ct. Kings Co. 2009) (internal citations omitted). Although mandatory

injunctions are typically considered a "drastic remedy which should only be utilized where

it,"
compelling circum:stances require if a party "is engaged in unlawful conduct which is

proper."
continuous, then a mandatory injunction is Id.

20. Furthermore, a Court may properly grant an injunction to a condominium board if:

(i) the condo's governing documents clearly define the common elements, (ii)the governing

documents clearly authorize the board to maintain, repair or improve the common elements, and

(iii) the access by the board is to so maintain, repair or improve the common elements. See

géñérally Bd. Of Managers of Bond Parc Condominium v. Broxmeyer, 62 A.D.3d 925, 881

N.Y.S.2d 106 (2d Dep't 2009).

21. The elements for injunctive relief have been met by Plaintiffs in the instant

application. There can be no question of the merits of Plaintiff's request inasmuch as the clear and

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concise terms of the Governing Documents mandate that Defendants grant access to Plaintiffs to

perform the Work.

Defendants' Defendants'
22. As discussed above, ownership of the Unit is subject to

the Governing Documents. The Governing Documents clearly provide that the Association and

Board of Managers can access the Common Elements for maintenance, repair or improvement,

whether such Common Elements are restricted or not. See generally Exhibit A, HOA Declaration

and Exhibit B, Condo Declaration.

Defendants'
23. Here, the Association and the Board of Managers must access the Unit

in order to maintain, repair, and improve the Common Elements between the subfloor of the

Defendants'
Sakolsky Unit and the ceiling of the Unit. Adler Aff., ¶ 10. As set forth in the

Governing Documents, and as described above, Defendants are required to permit the Plaintiffs

Defendants'
access to the Unit in order to perform the Work to the Common Elements.

Defendants'
24. Since Plaintiffs are undoubtedly entitled to access to the Unit to

Plaintiffs'
perform the Work, and Defendants have duly denied request for such access, Plaintiffs

are within their right to commence the instant action.

25. The requested access is based solely on the rights of the Plaintiffs set forth in the

Governing Documents. Thus, due to the clear and unambiguous terms of the Governing

Documents, Plaintiffs have demonstrated the likelihood of success on the merits. Furthermore, as

set forth in the accompanying Adler Aff., the Condo will suffer irreparable harm ifthe injunction

is not issued. Moreover, the access sought benefits both the Defendants as well as the owner and

Defendants'
occupants of the Sakolsky Unit. Adler Aff., ¶ 11. Moreover, repeated refusal to grant

access constitutes continuous unlawful engagement, and thus an injunction is proper.

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26. In Broxmeyer, supra, the Second Department found that the Supreme Court

properly awarded compelled certain unit owners and occupants to provide the condo board of

managers access to the terrace appurtenant to the subject unit in order to install windows in the

terrace wall. The Second Department found that terraces appurtenant to units are clearly defined

as common elements in the relevant governing documents, and that the board of managers was

clearly authorized to enter in order to perform maintenance, repair or improvement of a unit or any

common elements. Broxmeyer, 62 A.D.3d at 927, 881 N.Y.S.2d at 107-108. Accordingly, since

the plaintiff board of managers had the right of access, and defendant unit owner/occupant

improperly refused to grant such access, the Court granted an injunction for access.

27. Here, as inBroxmeyer, Plaintiffs seek access to maintain, repair and improve the

Defendants'
Common Elements between the Sakolsky Unit and the Unit. The most effective and

Defendants'
commercially reasonable way to perform such Work, is toaccess the Unit. Adler Aff.,

¶ 10. Despite repeated requests for such access, Defendants have refused to permit Plaintiffs to

Defendants'
reasonably enter the Unit to perform the Work. Adler Aff., ¶ 7.

28. As the Governing Documents clearly demonstrate, Plaintiffs are entitled to access

Defendants'
to the Unit to perform the Work. Thus, for the reasons set forth herein and in the

Plaintiffs'
acceinpanying Adler Aff., instant motion should be granted in itsentirety.

29. No previous application has been made for the relief sought herein.

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PLAINTIFFS ARE ENTITLED TO A LICENSE PURSUANT TO THE RPAPL

Defendants'
30. Plaintiffs are also entitled to a license for temporary access to Unit

pursuant to RPAPL §§ 881 and 339-i in order to perform the Work.

31. Section 881 of the RPAPL states, in pertinent part:

When an owner or lessee seeks to make
improvements or repairs to real property so situated
that such improvements or repairs cannot be made by
the owner or lessee without entering the premises of
an adjoining owner or his lessee, and permission to
so enter has been refused, the owner or lessee seeking
to make such improvements or repairs may
coinmcñce a special proceeding for a license so to
enter ....

32. Section 339-i(5) of the RPAPL states, in pertinent part:

The unit owners shall have the irrevocable right, to
be exercised by the board of managers, to have
access to each unit from time to time during
reasonable hours to the extent necessary for the
operation of the property, or for making emergency
repairs therein necessary to prevent damage to the
common elements or to another unit or units ....

See also Caprer v. Nussbaum, 36 A.D.3d 176, 184-85, 825 N.Y.S.2d 55, 64 (2006); Jerdonek v.

(13'
41 W. 72 LLC, 143 A.D.3d 43, 36 N.Y.S.3d 17 Dep't. 2016); Bd. of Managers of Sunrise

Manor Condo. Ass'n v. Aksakalova Family Ltd. P'ship, 50 Misc. 3d 1215(A), 36 N.Y.S.3d 46

(Sup. Ct. Queens Co. 2016).

33. Accordingly, where the owner of real property requires access to an adjoining

property for the purpose of making improvements or repairs to its own property, and the adjoining

property's owner refuses such access, the Courts are empowered to provide the property owner

with a limited license to enter the adjoining property. As the New York courts have frequently

explained, RPAPL § 881 is merely "a codification of the well settled principles of jurisprudence

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expounded by the courts of this state and in other jurisdictions dealing with conflicting interests of

owners."
adjacent property Chase Manhattan Bank (Nat. Ass'n) v. Broadway. Whitney Co., 57

Misc. 2d 1091, 1096, 294 N.Y.S.2d 416, 420 (Sup. Ct. Queens Co. 1968), affd sub nom. Chase

Manhattan Bank v. Broadway, Whitney Co., 24 N.Y.2d 927, 301 N.Y.S.2d 989 (1969).

34. The Courts have confirmed that, in determining whether to grant a limited license

reasonableness."
pursuant to RPAPL § 881, courts apply a "standard of Bd. of Managers of Artisan

(1st
Lofts Condominium v. Moskowitz, 1 14 A.D.3d 491, 492, 979 N.Y.S.2d 811 Dep't 2014)

(internal citations omitted). In making this determination, "[c]ourts are required to balance the

interests of the parties and should issue a license 'when necessary, under reasonable conditions,

and where the inconvenience to the adjacent property owner is relatively slight compared to the

refused.'"
hardship of his neighbor ifthe license is Id.,quoting Chase Manhattan Bank, 57 Misc.2d

at 1095 ; see also MK Realty Holding, LLC v. Seneider, 39 Misc.3d 1209(A), 971 N.Y.S.2d 72

(Sup. Ct. Queens Co. 2013). Courts are also instructed to consider whether the party seeking the

license "is prepared to do allthat is feasible to avoid injuries resulting from its entry upon [the

property]...." (1st
adjacent Mindel v. Phoenix Owners Corg, 210 A.D.2d 167, 620 N.Y.S.2d 359

Dep't 1994); see also N. 7-8 Investors, LLC v. Newearden, 43 Misc.3d 623, 928 N.Y.S.2d 704

(Sup. Ct. Kings Co. 2014).

35. Applying these principals to the facts before this Court leads inescapably to the

conclusion that Plaintiffs are entitled to a license for the temporary access itseeks herein.

36. First, the Work consists primarily of the installation of certaiñ acoustical

Defendants'
installation in the Common Elements between the Unit and the Sakolsky Unit in order

to better support the floor trusses and minimize floor vibrations. This remedial work represents the

"repairs" "improvements"
very essence of and set forth in the plain language of the statute.

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37. Second, the requested access is reasonable. In order to perform the Work in the

most effective and commercially reasonable manner, and with the least amount of impact to the

Defendants'
units, Plaintiffs require access to the Units. See Adler Aff. ¶ 10. Plaintiffs only need

Defendants' - -
access to the Unit for a short period of time six work days and only between the

hours of 8:00 a.m. and 4:00 p.m. on those work days. See Adler Aff. ¶ 9. Moreover, the Work is

necessary in order to correct the damages caused by the vibrations in the Sakolsky Unit. See Adler

Aff. ¶ 11. Accordingly, because the inconvenience to the Defendants is relatively slight compared

to the
hardship of the adjacent unit owner, the requested access is reasonable.

Plaintiffs'
38. Third, after the Work is complete, construction team will sheetrock, tape,

Defendants'
spackle and paint the ceiling
of the Unit to restore it to its original condition, and will

Defendants'
provide a professional
cleaning of the Unit at the conclusion of the Work,

demonstrating that Plaintiffs are prepared to do all that is feasible to repair any injuries that may

result from its entry upon the Defendant's Unit.

39. Finally, as set forth above, Defendants have repeatedly and wrongfully refused, and

Defendants'
continue to refuse to permit Plaintiffs access to the Unit to perform the Work.

40. For all of the foregoing reasons, Plaintiffs should be granted a license for temporary

Defendants'
access to the Unit pursuant to RPAPL §§ 881 and 339-i.

41. No previous application has been made for the relief sought herein.

Plaintiffs'
WHEREFORE, it is respectfully requested that this Court grant the application

in its entirety, and for such other relief as this Court deems just and proper.

Dated: New York, New York

January 29, 2019

Daniel . Katz

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Order to Show Cause: Beechwood Plainview Old Bethpage Llc, Country Pointe At Plainview Homeowners Association, Inc., Board Of Managers Of Country Pointe At Plainview Condominium Ii v. Jay Grindell, Sandra Sander

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