Preview
(FILED: NEW YORK COUNTY CLERK 0371472014) INDEX NO. 151313/2014
NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 03/14/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
HELEN SILLER, Index No.: 151313/2014
Plaintiff, AFFIRMATION OF STEPHEN I.
SILLER IN FURTHER
SUPPORT OF MOTION FOR
PRELIMINARY INJUNCTION
-against-
THE THIRD BREVOORT CORPORATION,
Defendant.
STEPHEN I. SILLER, an attorney duly licensed to practice before the courts of the State
of New York, and not a party to this action, hereby affirms the following under penalty of
perjury:
1 I am the attorney for Plaintiff Helen Siller (“Helen”) in this action and am fully
familiar with all of the records and proceedings in this action. I submit this Affirmation in
support of Helen’s Application for a Preliminary Injunction pursuant to CPLR 6301 and 631].
No prior application for the relief sought herein has been requested in this or any other action.
2 The relief requested is a preliminary injunction preventing defendant from
interfering with, or causing defendant to allow, Helen to replace her broken washer and gas dryer
that vents out to Helen’s terrace with like appliances that are Energy Star rated but of different
brands than those specified by Defendant in its 2010 and/or 2012 House Rules. The year of
adoption is irrelevant to Helen’s Lease, Alteration Agreement and defendant’s Superintendent’s
Letter approving Helen’s dryer vent (“Dryer Vent Inspection Letter”), all of which are contracts
that defendant cannot by a House Rule unilaterally amend or otherwise change. Complaint 3-9.
3 Helen’s washer, dryer and vent were all approved by defendant in writing in
1990, and those appliances and vent have been in place for 23+ years. Compl. 93. Defendant
has refused to allow Plaintiff to do this replacement which materially interferes with her quiet
enjoyment of her cooperative apartment and her contract rights. Compl. 442-58. No alterations
are involved at all with this washer/dryer replacement which is no different than repairing the
broken washer but for the fact that parts are no longer available. Edwin Thirlby Affidavit, dated
March 13, 2014 (“Thirlby Aff.”) {J11-13. Plaintiff purchased her first apartment in 1980 and in
1990 purchased her second, adjoining apartment that Defendant in writing allowed Plaintiff to
combine with the first apartment and to install the washer, dryer and vent. Compl. 9928-37.
4. At our hearing before this Court on Tuesday, February 18, 2014 (“2/18 Hearing”),
the Court advised the parties that:
¢ Based on the Court’s familiarity with the law involving coops and alteration
agreements, the business judgment rule did not apply at this time on this Motion.
The Court would grandfather Helen’s continued use of the gas dryer and vent out to
Helen’s terrace.
I should provide defendant with the sudsing specifications for the Frigidaire washer
Helen desired to install (“Washer”) and if the sudsing of that Washer was comparable
to or better than the sudsing of defendant’s brands, the Court would allow Helen to
purchase and install that Washer.
5 Immediately following the 2/18 Hearing, I did exactly what the Court directed me
to do. Although defendant already, since January 31, 2014, had the specifications for the Washer
Helen proposes to buy and install,! I sent defendant’s counsel two emails, attached as Exhibits 1
and 2 to this Affirmation, attaching documentary information demonstrating that (a) contrary to
what defendant’s president and counsel told this Court at the 2/18 Hearing, the brand of washer
is irrelevant to sudsing because it is the nature and quantity of detergent that determines sudsing
in a front loading washer, which Helen’s proposed Washer and defendant’s approved washers all
are, and (b) the brand of Washer Helen proposes to install actually exceeds the specifications for
a comparably sized washer that defendant has approved.
6 Defendant has not replied to those two emails. I also sent copies of those two
emails to defendant’s new counsel, Mr. Margolis, at 10:54 am by email on March 5, 2014, the
same day Document #14, defendant’s Notice of Change of Attorney was e-filed in this action.
While the parties have exchanged settlement proposals, defendant still has not responded to my
two emails and still refuses to resolve this Motion along the lines the Court directed at the 2/18
Hearing. Defendant told me “go to court” (Compl. 51) and here we still are even though the
data in my two emails demonstrated that Helen’s brand of Washer actually exceeds the water and
energy specifications for defendant’s brand, and being a front loading washing machine has the
same sudsing attributes as do defendant's specified brands of washers.
7 Defendant’s reply papers continue to assert this “brand determines the suds”
argument in 15 of the February 17, 2014 Affirmation of Diane C. Nardone, defendant’s
president (“Nardone Aff.”). Defendant’s “suds” argument proves that defendant’s specification
in its 2010 or 2012 House Rules of specific brands is neither “reasonable” nor “necessary for the
operation and control of the building” as Lease 416 requires all House Rules to be. Compl. 499-
12. Please see {6-11 and 14 of the March 8, 2014 Affidavit of Mr. Stephen Ross (“Ross Aff.”),
"1 sent the defendant’s Managing Agent the following email on January 31, 2014 at 7:56 am (Compl. 943): “Here
are the links to the specifications for the washer and dryer we are considering; I have also copied the specifications
into this email below. The dryer would stack on top of the washer, both arefront-loading:”
an experienced appliance industry executive, who states that the nature and quantity of the
laundry detergent, not the brand of washing machine, determines the amount of suds.
8. Lease 416 is clear: “The Lessor may from time to time establish such reasonable
house rules as its board of directors may deem necessary for the management and control of the
building, and may also from time to time alter, amend and repeal such rules.” (Emphasis added)
(Compl. ¥9) Defendant still insists (pp. 4, 16-17 of defendant’s memorandum of law) that (a)
because defendant’s board adopted new House Rules in 2010 or 2012 or both years, those rules
must ipso facto be both “reasonable” and “necessary for the operation and control of the
building” even if on their face they are not, and (b) the business judgment rule applies to protect
defendant’s adoption of rules that are neither “reasonable” nor “necessary for the operation and
control of the building” as those new House Rules are applied to Helen’s existing and approved
alterations inclusive of her washer, dryer and dryer vent.
9 That these new House Rules are neither “reasonable” nor “necessary for the
operation and control of the building” can be determined from the Nardone Aff. which contains
at least five false or misleading statements that can only have been intended to create the illusion
that these new House Rules comply with the mandate of Lease 916:
(1) Nardone Aff. {15 that states “[uJnlike the brand chosen by [Helen], [defendant’s]
recommended brands are low sudsing machines” is false or misleading because the brand does
not determine the amount of suds and Helen’s proposed Washer being a front loader is by
definition a low sudsing machine. See Exhibit 1 and Ross Aff. f{10-11.
(2) Nardone Aff. §15 that states that defendant’s brands are “recommended” is false or
misleading because Nardone Aff. 414 states that defendant’s washer/dryer brands are “limited”
to three as is stated in House Rule #4 (“‘a Lessee seeking approval to install a washing machine
and/or clothes dryer is limited to three brands: Miele, Bosch, and Asko”) (Emphasis added)
Compl. 410.1.
(3) Nardone Aff. 17 that states that defendant’s “alteration agreement now requires
shareholders to install several failsafe measures to ensure that washer/dryers do not cause floods
in the building” is false or misleading because defendant's alterations agreement is silent about
any failsafe measures (ignoring the fact that a stand-alone dryer cannot cause a flood). See Ex. 1
to Helen’s Affidavit in Further Support (“Helen Aff.”) and paragraph 11 below.
(4) Nardone Aff. 17 states that defendant’s self-venting dryer House Rule #4 (Compl.
410.1) exists to “[allow] them [self-venting dryers] to exist in harmony with a 1955 building by
not penetrating and compromising our brick facade” is false or misleading because defendant’s
House Rules #78 and 79 actually promote and require increases, to a significant degree, of
penetrations to the Building’s facade by prohibiting installation and re-installation of window air
Conditioning units and permitting only through-the-wall air conditioning units” which means
defendant is happy for the Building fagade to be penetrated and compromised for an air
conditioner which makes a far bigger penetration into the building facade and is visible from the
Street in most cases than does Helen’s existing dryer vent that is already weatherproof and
watertight and not visible from the street. Helen’s Aff. 420 et. seq.
(5) Pages 2 and 19 of defendant’s memorandum of law states that Helen’s 23 year old
washer and dryer were “allegedly” first approved in 1990 and states on page 7 that the Dryer
Vent Inspection Letter was “allegedly” signed by defendant’s superintendent. Defendant
> House Rule #78 states: “No window air conditioner may be installed OR replaced in any apartment without the
express prior written consent of the Lessor.” House Rule #79 incorporates by reference the form of defendant’s
“most current Alterations Agreement and all attached Exhibits.” §10(j) of that form of Alterations Agreement,
which is attached as Exhibit 1 to Helen’s Aff., provides: “Through-the-wall air conditioners are the ONLY units [of
air conditioner] permitted.”
possesses in its business records all of defendant’s approvals of Helen’s alterations, including
defendant’s engineer’s approval letter, board minutes, Alteration Agreement, and Dryer Vent
Inspection Letter. (Compl. {4-5 and 30-34; Helen’s Aff. 915 and Exhibit 1 to Helen’s Aff.) Is
defendant again misleading this Court by suggesting defendant did not approve Helen’s
apartment combination and her washer, gas dryer and vent in 1990?
10. We respectfully request that the Court strike the Nardone Aff. because there must
be a consequence to a lawyer (Nardone Aff. 1) making false and misleading statements to a
Court. See NY DR 7-102(A)(1).?
11. The only issue about the washer is what ancillary devices need to be installed with
it. Nardone Aff. 17 states that defendant’s current form of alterations agreement requires the
installation of lead pans under the washer, a safety shut off valve, and a flood stop mechanism.
Paragraph 9(3) above demonstrates that this statement in the Nardone Aff. is false because these
three devices are not mentioned in the alteration agreement (or the House Rules). It is the
Nardone Aff. and not any House Rule or alteration agreement that requires these devices. The
Nardone Aff. does not a House Rule make.
12. Helen has maintained a water shut-off valve for her washer for the past 23+ years
and that should be sufficient for the new Washer. Helen’s Aff. 911. It is clear from Ross Aff.
111 that the additional two devices are fairly useless. Mr. Edwin Thirlby’s March 13, 2014
affidavit {913-16 (“Thirlby Aff.”) states that these two additional devices would be irrelevant to
a flood caused by a leak in the washer’s outer tub or water pump. In fact, one of the devices
3 NY DR 7-102(A)(1) prohibits a lawyer from taking any action in litigation that would serve “merely” to “harass or
maliciously injure” another person. The qualifier “merely” means that the five false or misleading statements would
not violate this rule if they have some legitimate purpose other than harassing or injuring Helen. There is no
legitimate purpose for those five false or misleading statements and it is clear they had to have been made to harass
and injure Helen. This DR also applies to defendant’s counsel who has repeated his client’s false or misleading
statements without independent investigation.
defendant in Nardone Aff. 17 insists on having installed would allow water to run unchecked
for two hours which makes that device “fairly useless” as stated in Ross Aff. 411; Thirlby Aff.
1110, 13-16. There always has been present in the apartment at least one responsible adult at all
times that my washing machine is being used, and the water shut off value is always turned off
when the wash cycle finishes and the clothes are put into the dryer. And I mean always in the
entire 23 plus years I have had my washer and dryer.”(Helen’s Aff. 11)
13. I personally attest to the (a) accuracy of this statement in Helen’s Aff. 911 after
being married to Helen for nearly 43 years, (b) fact that Helen’s washer, dryer and dryer vent
have become a necessity for her for which she paid defendant in terms of an alteration fee in
1990, and maintenance on two apartments and many assessments over the years, and (c) fact that
having and maintaining this necessity was a significant motivating factor in Helen (and me in
1990) buying the second apartment, a fact we gave defendant notice of. Compl. 429.
14, Defendant wants Helen to sign a new alteration agreement. Doing that essentially
would acknowledge defendant can compel Helen to close up all the brick penetrations defendant
previously approved. Since there are no alterations involved here, Thirlby Aff. 418, Ross Aff.
416, no new alterations agreement should be required to be signed by Helen. Moreover,
defendant allowed Helen to replace a wall air conditioner in 2013 without any new alterations
agreement being signed and only an insurance certificate provided. Compl. 67; Helen’s Aff.
Exhibit 9 and 939.
15. The Court told defendant’s counsel and me at the 2/18 Hearing that the Court
would allow plaintiff to continue using the existing gas dryer vent and the Court would
grandfather that use. There is simply no legitimate reason defendant’s self-venting dryer rule
should apply to Helen when she has had a weatherproof and watertight dryer vent for the past 23
years. See Thirlby Aff. {{13-17; Ross Aff. 491 1(e), 13 and 17-18.
16. Page 2 of defendant’s memorandum of law acknowledges that Helen’s dryer vent
is “small” but disingenuously states that defendant “is willing to bear all cost to close, re-brick
and weatherproof this small hole” without acknowledging that (a) extensive and expensive
electrical alterations and upgrades would be needed to accommodate a 220 volt electric self-
venting dryer because Helen has a 115 volt gas dryer, (b) interior cabinets would need to be
removed, repaired and replaced, (c) the interior walls would need to be plastered and Helen’s
laundry room taken apart and painted, (d) Helen doesn’t want or need any of these alterations
(Helen’s Aff 35; Thirlby Aff 418; Ross Aff $16 (“I fail to see how disconnecting an existing
gas dryer that ducts to an existing external vent and removing it from plaintiff's apartment, and
delivering a new gas dryer and connecting it to the exact same connections, is an alteration of
anything, particularly when the old and new dryers are both 115 volt units.”)), and (e) there is
nothing wrong with the dryer vent (Thirlby Aff 18, 9 (“I do not understand how this makes any
sense, especially when the dryer vent is in good working order as far as I know.”); and Ross Aff
‘1! 1(€), () and (g) (“Installing a washer and dryer, particularly a dryer that already has an
existing gas connection and an existing duct to an existing exterior vent that is already weather-
proof, involves merely disconnecting the old units and connecting the new units to the existing
connections which in my experience is far more efficient and less costly than doing what
defendant proposes. Why tamper with an existing and weather-proof exterior vent that is
functioning well?”).
17. Defendant omits telling the Court not only that its House Rules promote and
increase brick penetrations by mandating removal of window air conditioners and installation of
wall units, supra, text at footnote 2, but that defendant’s Building already has at least 1,977
penetrations (1,242 brick penetrations and 735 coping stone penetrations), only one of which is
Helen’s small dryer vent. Helen’s Aff. 928-30. “The building penetration in issue here, my
tiny dryer vent, is not visible from the street and thus amounts to just 1 out of 1,242 brick
penetrations and 1 out of 1,977 total building penetrations,’ or .0008% of all brick penetrations
and .0005% of all penetrations.” Helen’s Aff. 930.
18. If there are very few existing dryer vents or if Helen’s is the only existing dryer
vent, which pp. 12-13 of defendant’s memorandum of law suggests, then how can defendant in
good faith claim the new self-venting dryer House Rule as it applies to existing dryer vents was
not targeted at Helen? Helen’s Aff. 424.
19. All Helen wants to do is maintain what she has. “Defendant cannot be prejudiced
if at this time I replaced what I have with a new Washer and gas dryer without the additional
electric flood control device and under-washer pan because (a) that is what defendant approved
23 years ago, (b) there has been no problem whatsoever from my washer in those 23 years, (c) I
will continue to maintain my water shut-off valve, and (d) I will continue to have a responsible
adult in my apartment whenever the Washer is used who will turn off the water shut-off valve
when the washer is finished. There must be a consequence to defendant misleading this Court
and that consequence should be that I can install the new Washer and maintain the water shut-off
valve which is not even a mandate found in defendant’s House Rules or alterations agreement,
and install a gas dryer that vents to my existing terrace vent.” Helen’s Aff. 912.
“The number of penetrations is probably greater than 1,977 particularly due to defendants
mandate to replace window air conditioners with through-the-wall air conditioners and I could
not count all the exterior lights, faucets and other penetrations throughout the Building’s exterior
on its 20 floors and exterior of the basement.
20. Page 3 of defendant’s memorandum of law refers to a “lawyer-witness” rule to
attempt to deny me the right to act for Helen. Helen can testify to whatever I can testify to and I
have no objection to being deposed, and I would obtain separate representation for that. Helen’s
Aff. 934. Defendant’s reliance at footnote 6 on page 9 of defendant’s memorandum of law on
Smolenski v. T.G.1. Friday’s. Inc., 15 Misc.2d 791, 834 N.Y.S.2d 430 (Supreme Nassau 2007), is
misplaced because there was no “incident” here that I witnessed. My testimony might be needed
only to authenticate the emails I sent to defendant’s managing agent and president, but that is
only because in defendant’s Verified Answer, defendant denies that the managing agent or
defendant's president received those emails and that the Complaint accurately quotes them. See
Compl. {42-57 and defendant’s denials of those paragraphs in its Verified Answer. Defendant
thus attempts to bootstrap its own bad faith and misconduct in submitting what is in essence a
general denial into an attorney disqualification. Defendant also seems to ignore Compl. 424
which states that | am not a necessary party to this action: “If Stephen is a necessary party, then
plaintiff and Stephen would proceed with this action pro se or would do so with the assistance of
one or more other attorneys.” Is it an act of desperation by defendant to essentially threaten to
disqualify me when defendant failed to raise that before the Court at the 2/18 Hearing and by
their conduct should be deemed to have waived that argument?
21. Defendant makes a point that Helen seems not to have known about defendant’s
2010 House Rules. Helen said she did not have a copy of the 2010 House Rules, Helen’s Aff.
‘38, and p. 8 of defendant’s memorandum of law said the language of section 4 regarding
washers and dryers did not change so we fail to understand why defendant thinks it in the least
important whether defendant adopted this House Rule in 2010 or 2012. Whether defendant’s
new House Rules were new to Helen in 2010 or 2012 is irrelevant to this Motion. What is
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relevant is that House Rules adopted in 2010 or 2012 were sufficiently removed from the 1985
House Rules to be viewed by Helen as “new.”
22. Page 3 of defendant’s memorandum of law refers to a Lease provision
purportedly requiring Helen to have given defendant 30 days’ notice before suing. The law does
not require Helen to do a useless act. On behalf of Helen, 1 asked permission on January 31,
2014 to do what Helen proposes, and defendant told me on February 4, 2014 to go to court.
Compl. §51. CPLR 6311 allows for preliminary injunctions on notice to defendant and that is
what Helen seeks. Defendant received notice and has responded. It would have been useless for
Helen to wait any period of time because defendant said no to her request and that was
defendant’s “final word.” Compl. 956.
23. The factual misstatements in defendant’s memorandum of law are addressed in
Helen’s Aff. In addition to the Court’s statement to the parties’ counsel at the 2/18 Hearing that
the Court had experience from a four week trial in a coop alteration agreement case to conclude
that the business judgment rule did not apply here, I would add to my e-filed Memorandum of
Law (“Siller Memo of Law”) in response to defendant’s memorandum of law the following few
points:
a. Further to the discussion on pages 3-4 of the Siller Memo of Law of Babeli v. 7-
11 East 13th Street Tenant Corp., NY Supreme Court, NYLJ December 3, 2003 (“Babeli’”)
(Exhibit A to the Siller Memo of Law), defendant ignores Lease 19 which imposes a continuing
obligation on Helen to replace what she installed during her 1990 alterations. While cases with
facts like those in this action are few and far between because most boards and most cooperators
act reasonably, Babeli is closest to our facts because of the continuing nature of Helen’s
obligations just like the plaintiff in Babeli had not only a desire but an obligation to finish her
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renovations pursuant to an Alteration Agreement. Defendant’s Alteration Agreement (Compl.
Ex. | and Helen’s Aff. Ex. 1) imposes obligations on Helen to complete renovations and Lease
[19 requires Helen to replace what she’s installed in her renovations. Defendant devotes one
sentence to Babeli.
b. Defendant likewise devoted one sentence to Residential Board of Managers of
Columbia Condominium y. Alden, 178 A.D.2d 121 (1 Dept. 1991) (“Alden”) (Exhibit B to the
Siller Memo of Law) which is the case the Court relied on in deciding Babeli. Defendant
ignored the language in the First Department’s holding and the cases cited in Alden. For
example: “Haberman v. Hawkins, 170 A.D.2d 377 [landlord estopped from recovering
possession based on unauthorized alterations where landlord consented to alterations and waited
four years before alleging violation of lease]; Newmann v Mapama Corp., 96 A.D.2d 793, 794
[preliminary injunction requiring removal of alterations to leased premises reversed in the
absence of any showing of imminent danger or irreparable harm]).” Jd. at 123.
¢. As expected, defendant relies on Matter of Levandusky v One Fifth Avenue Apt.
Corp., 75 N.¥.2d 530 (1990) (“Levandusky”) and the “business judgment rule” articulated
therein. Defendant ignores the First Department’s discussion in Alden about Levandusky: “In
the cases relied upon by Supreme Court (Matter of Levandusky v One Fifth Avenue Apt. Corp.,
75 N.Y.2d 530, 540; Board of Managers of the Ocean Terrace Towne House Condominium v
Lent, 148 A.D.2d 408, lv denied, 75 N.Y.2d 702, and others), defendant either had not sought or
had been expressly denied approval for an alteration or renovation, but nevertheless proceeded in
defiance of the board's rules or decisions. In none of these cases did the landlord or board try to
stop construction or compel demolition of the renovations it had approved. If defendants are
compelled to tear down the renovations, they will be deprived of the use of the common hallway
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leased from plaintiff, for which they have already paid $6,300 in rent and $10,000 as asecurity
deposit and for which they remain obligated to pay rent during the pendency of this action.
Finally, if defendants ultimately prevail, they will have been forced to incur the unnecessary
expense of demolition and reconstruction.” Jd. at 123. (Emphasis added)
d In relying on Alden, the New York County Supreme Court in Babeli said that
“defendants have prevented plaintiff from proceeding with the renovation by imposing additional
approvals not contemplated in the Alteration Agreement” and “Plaintiff seeks a preliminary
injunction allowing her to continue and complete the alterations.” That is the situation here
where defendant is preventing Helen from proceeding with a mere replacement of a washer and
gas dryer that involves no alterations at all and which Helen is required to replace under Lease
419. Defendant is preventing that by requiring Helen to sign a new alteration agreement and in
compelling that to agree to new House Rules that were never contemplated in the Lease or the
Alteration Agreement Helen signed.
€. Defendant says the Lease allows defendant to change the House Rules.
Defendant gives Lease 416 short shrift in its explicit requirements: “The Lessor may from time
to time establish such reasonable house rules as its board of directors may deem necessary for
the management and control of the building, and may also from time to time alter, amend and
repeal such rules.” (Emphasis added) Since all House Rules must be reasonable and necessary
for the management and control of the building, all House Rule amendments must likewise be
reasonable and necessary for the management and control of the building.
f. Section 6 of defendant’s by-laws (p. 4 of defendant’s memorandum of law)
allowing defendant’s board to change the house rules does not abrogate Lease 416 in the least so
whenever the board deems it advisable to amend the House Rules, those amended House Rules
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must be “reasonable” and “necessary for the management and control of the building.” The by-
laws and Lease were filed as part of defendant’s Offering Statement and must be read together.
Defendant’s attempt on pp. 16-17 of defendant’s memorandum of law to imply that Section 6 of
the by-laws has no words like the reasonable and necessary words in Lease $16 does not mean
defendant’s board can do whatever it wants without regard to Lease 416’s standards. Similarly,
defendant’s quote from Abeles on pp. 19-20 of its memorandum of law about the board there
having the right to amend the house rules ignores Lease 416 that deals expressly with House
Rule amendments and requires them to be both “reasonable” and “necessary for the operation
and control of the Building.” For defendant’s reading of the by-laws to be correct, the Court
must ignore Lease 416, the Alteration Agreement Helen signed and the Dryer Vent Inspection
Letter. As Helen said in Helen’s Aff. 439, defendant’s position is that “an agreement is an
agreement except when the agreement is with The Third Brevoort Corporation.” Then why does
defendant have any alteration agreements that defendant denominates as “agreements” if
defendant can change them unilaterally?
f. The late charges in Allen v. Murray House Owners Corp., 174 A.D.2d 400, 571
N.Y.S.2d 698 (1 Dept. 1991) are irrelevant to the facts in this action but defendant’s quotation
from that case about the power of the board to adopt or amend “reasonable” rules buttresses my
argument here. Whether the late charges in that case were reasonable is not analogous to
whether defendant’s dryer vent House Rule and three-brand washer/dryer House Rule limitation
are reasonable. We have by Helen’s Affidavit, Mr. Ross’s Affidavit and Mr. Thirlby’s Affidavit,
as well as Ms. Nardone’s own words in her Affirmation, proven that these new House Rules are
neither reasonable nor necessary for the operation and control of the Building.
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g Defendant misconstrues the holding in Ludwig v 25 Plaza Tenants Corp., 184
A.D.2d 623 (2d Dept 1992). Pages 7-8 of the Siller Memo of Law stated: “]See also Cannon
Point N. v. Abeles, 160 Misc.2d 30, 612 N.Y.S.2d 289 (App. Term 1* Dept. 1993) (“Abeles”) in
which no approvals had been granted for installation of a washer and dryer, unlike in this case
where Defendant did grant its written approval; in Abeles, the concurring opinion referred to a
then-recent Appellate Division, Second Department case and said that the business judgment rule
would not apply when the board action is contrary to the proprietary lease such as the Lease in
our case: “In a case decided shortly after Levandusky, the Second Department held that the
business judgment rule does not apply to decisions and actions of a co-op board which violate
the express terms of a proprietary lease requiring that decisions be made on a reasonable basis
(Ludwig v 25 Plaza Tenants Corp., 184 A.D.2d 623 [2d Dept 1992]). As the Court wrote there:
"Where * * * the Board's actions clearly violate the express terms of the proprietary lease, the
“business judgment rule is inapplicable (see, Fe Bland v Two Trees Mgt. Co., 66 N.Y.2d 556,
563, 565 [1985]).” Id. (Exhibit C), 160 Misc.2d at 33. The Lease in our case requires that
Defendant’s house rules must be “reasonable” and must be “necessary for the management and
control of the building.” Complaint Paragraph 9. “Importantly, where the goveming documents
require that house rules be ‘reasonable,’ courts may not apply the more broad deferential
business judgment rule standard in determining whether a board has acted within itsauthority.”
(id. (Exhibit C) and cases cited therein) Accordingly, the Lease, Alteration Agreement and
Dryer Vent Inspection Letter cannot be trumped or abrogated by Defendant’s subsequent 2012
House Rule.”
h, Defendant ignored Jefferson Associates v. Miller, 63 Misc.2d 1056 (Civ. Ct.
Queens 1970) (Siller memo of Law pp. 10-11) regarding the absence of any mention in
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defendant’s Lease, alteration agreement or House Rules about the three devices mentioned in
Nardone Aff {17 being required to be installed by shareholders wishing to replace or install a
washer (even though this Jefferson case involved a pet). “It should be noted that nowhere in the
lease itself is there any mention made of the harboring of a dog so as to constitute a substantial
violation. [Citations omitted.] The rules and regulations, not signed by the tenants, which appear
on the back of the printed form of the lease, is the only place where there is any mention made of
the harboring of a dog.” Here, there is no mention of any of the three devices in any of the
Lease, by-laws, House Rules or alteration agreement, only in Nardone Aff 417, and that does not
create a House Rule or anything else that can remotely be viewed as binding on Helen. Perhaps
we missed mention of these three devices somewhere in the Lease, by-laws, alteration agreement
or House Rules, but interestingly defendant does not cite to any of those documents when
referring to those three devices, only to Nardone Aff 417. This is yet another reason the Nardone
Affirmation should be stricken in its entirety. Stating to the Court that a House Rule or provision
in an alteration agreement exists when it does not is not acceptable under any circumstance.
1 Defendant’s citation to the 1985 House Rules on p. 5 of its memorandum of law is
what this case is about. If Helen did not keep in repair her washer, defendant could “remove the
same.” Helen cannot repair her 23+ year old washer since parts are no longer available. Helen’s
Aff. 1919, 25, Compl. $41. Defendant is impeding Helen’s ability to comply with Section 3.3 of
defendant’s 1985 House Rules quoted on p. 5 of defendant’s memorandum of law. And Helen is
justified in her fear that if she does not replace her washer and gas dryer, defendant will assert a
violation and attempt to evict her as defendant has attempted or done to a shareholder who
merely put information circulars in shareholders’ mailboxes (Ex. 7 and 8 to Helen’s Aff.)
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J Defendant says on page 10 of its memorandum of law that a preliminary
injunction is a “drastic remedy.” A preliminary injunction on the facts in this action which
revolve around defendant's unreasonable behavior is not at all “drastic” but certainly isurgent.
Helen should have had approval on February 5, 2014 if not before then to have installed her new
Washer and gas dryer. Defendant’s view of irreparable harm ignores the fact that Helen has a
broken washer that should be simple to replace but for defendant’s misconduct here. Helen’s
Aff. 1919, 25, Compl. §41. Helen does not really focus on cost for bricking up the dryer vent
because the issue here is not plugging up the dryer vent. Cost was mentioned only because
defendant’s emails set forth in the Complaint ignored the cost and disruption to Helen and her
apartment if defendant could close up the dryer vent.
k Page 16 of defendant’s memorandum of law repeats defendant’s hope that the
business judgment rule applies to allow defendant to adopt House Rules that are neither
reasonable nor necessary for the operation and control of the Building. The Court told
defendant’s counsel at the 2/18 Hearing that the business judgment rule did not apply here. My
original Memorandum of Law supports the Court’s conclusion.
1 As stated in Babeli, “[a] party seeking a preliminary injunction must establish (1)
a likelihood of success on the merits of the underlying action; (2) the prospect of irreparable
injury if the provisional relief is withheld; and (3) a balance of the equities tipping in its favor.
Olympic Tower Condominium v. Cocoziello, 306 AD2d 159, 160 (1st Dept 2003).” Babeli,
Exhibit A to the Siller Memo of Law. Helen has met these three requirements.
24. We have provided the Court with a proposed form of Preliminary Injunction
which has been e-filed separately and is also attached as Exhibit 3. Based on the foregoing and
17
the Affidavits submitted with my Affirmation, there is no reason the Court should not issue
Helen the preliminary injunction requested herein.
Stephen I. Siller
18
EXHI
S BIT 1 ~SILLER FEBRUARY
—_————— B 19, 2014 EMAIL
EE EN TO UE
DEFENDANT’S
ENDANI'S
‘COUNSEL
19
Stephen Siller
From: Stephen Siller
Sent: Wednesday, February 19, 2014 9:49 AM
To: ‘Marc L. Antonecchia - Holland & Knight LLP (marc.antonecchia@hklaw.com)'
Ce: ssiller@stephensiller.com
Subject: Suds and Brands
Attachments: HE.PDF; 02-19-2014 07;13;35AM.PDF; 02-19-2014 07;19;47AM.PDF
Dear Marc,
At yesterday's court hearing you had no option other than to parrot Ms. Nardone’s “concern about the suds a washing
machine makes” as the basis for the Coop Board’s limitation on a Cooperator’s choice of washing machine to three
specified brands. That was nonsense and | am being polite. While | will deal with Ms. Nardone’s other nonsense,
inaccuracies (and | am again being polite) and invective evident in her Affirmation and in her emails with me, | want to
address what the Judge told us to do which is to attempt to resolve the washer-dryer-vent part of the case:
1. Suds. See the attached paper from the Cleaning Institute. “HE detergents are formulated to be low-sudsing
and quick-dispersing to get the best cleaning performance with HE washers.” P. 6. It is the nature and quantity
of the detergent that causes suds, not the machine. The Coop has not legislated what detergents a Cooperator
Can use and suspect the Coop would not do that as that would not be enforceable. See page 7 as well about
“regular sudsing” detergents and using “the recommended amount of detergent for your wash load size and
amount of soil.” Page 8 says: “Follow the detergent manufacturer's instructions to determine the correct
amount of detergent to use.” The bottom of page 8 discusses over-sudsing from pre-treat and pre-soak
Products — again, over-sudsing is a function of the product and quantity of the product used — not the brand of
washer.
Page 11 says: “Using a regular detergent in an HE washer can create too many suds.” And” “The tumble action
of high-efficiency washers creates more suds than the agitator action of traditional washers.” We know that Ms.
Nardone has legislated using only HE washers so it would seem her mandate as to type — not brand -- of washer
is responsible for too much suds. Page 12 discusses using an HE detergent to solve the suds issue — again,
nothing to do with the brand of washer.
| believe you heard me tell the Judge that in my youth | installed and repaired appliances, including washers. It
was well known even four decades ago that excess sudsing was due to using too much detergent. Of course, the
formulation of detergents has changed in these four decades but the amount of sudsing remains primarily a
function of the quantity of detergent used. | suspect that Ms. Nardone may nevertheless persist in her
nonsensical argument about the impact on sudsing of the brand of machine.
High Efficiency washers and suds. Page 5 of the same publication says: “All front loading washing
machines are HE [High Efficiency] and use low-water levels in the wash and rinse process.” Thus all front loaders
are HE. The Frigidaire washer whose specifications we sent to the Managing Agent showed that my wife is
buying a front loader— which is by definition an HE machine. | suspect Ms. Nardone did not look at those
specifications. In any event, please send me all the “extensive research” Ms. Nardone or the Coop Board did on
washer brands.
The Frigidaire we proposed is more HE than the Asko. The HE front loading Frigidaire my wife is buying is
compared in the second attachment to a Nardone-approved Asko washer. We compared these two because
this Asko is closest in capacity to the Frigidaire. Asko is one of the Coop’s/Ms. Nardone’s three approved
brands. This comparison comes from the US Government's Energy Star website. Both are front loaders. The
tub capacity volume of each is the same (difference of .04 cubic feet which is nothing). The MEF on the
Frigidaire is higher and therefore the Frigidaire is a more efficient unit than the Asko. The WF on the Frigidaire is
1
lower than the WF on the Asko so the Frigidaire is more efficient than the Asko. See the third attachment which
likewise is from the US Government Energy Star website.
Dryer. The US Government Energy Star website does not rate clothes dryers. You heard the Judge tell us that
an appliance that uses 115V and 15 or 20 amps uses less electricity than a higher voltage, higher amperage
appliance which the three Nardone-specified brands are. We sent the specifications on the Frigidaire dryer my
wife is purchasing to the Managing Agent. It uses 115V. Electric usage is measured in watts times hours of
use. Since washers/dryers will run for roughly the same time regardless of brand, it is axiomatic that the Energy
Star rating will guide us and the Frigidaire’s rating shows it is more electrically efficient than the comparable
Asko. For your information, Volts times Amperage equals Watts or electric consumption. By definition a 20
Amp appliance that uses 115V uses less electricity than a 20 Amp 230 Volt appliance.
5. Ment. You also heard the Judge say the vent would be grandfathered.
The Judge asked me to do the research and provide it to you. | have now done that. | ask that you not prolong the
Coop’s/Ms. Nardone’s refusal to allow my wife to replace her washer and dryer with the Frigidaire models previously
specified. As| told you and the Court, we installed a water shut off valve 23 years ago so we were ahead of the Coop
and Ms. Nardone on that one. Installing a catch pan and 2 hour limit device is also fine even though a 2 hour limit device
is superfluous as the water to the washer is always shut off immediately after the washer stops. A new alterations
agreement is not fine — none was needed when we replaced the air conditioner last year and the existing Alteration
Agreement and Lease covers this replacement. An insurance certificate is also fine (as we have always proffered).
You should know that in the 23 years the washer/dryer have existed, there has never, not once, ever been a flooding or
drain clogging issue. We installed the water cut-off when no one else had ever heard of one. On the other hand, as Ms.
Nardone will tell you, we have endured countless and | mean countless floods from the Building, never from the washing
machine. And we still have water coming into our kitchen window sash that the Building’s engineer told us more than a
year ago he would address. He has never gotten back to us. Just like Ms. Nardone emailed me that she would get back
to us in “a day or two.” She didn’t and caused the need on our part to seek relief from a court as Ms. Nardone told us to
do.
Ms. Nardone seems to have made this personal, most likely because she does not like anyone to question anything she’s
done or wants to do. She can provide you with the questions | have asked over the years. All of them have been based
on the best interests of the Coop which has been our home for 33 -1/2 years, including when this Building was warmer
and friendlier -- the word is Haimish — as opposed to the “dictatorship” it seems to have become.
What does the Coop/Ms. Nardone wish to do?
Thank you.
Steve Siller
212-981-2330
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HE Washers and HE Detergents —
Working in Harmony to Save Energy and Water
About This Guide:
Compared to traditional washers, HE washers work in a completely
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to bring you this handy resource.
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So read on for important information that will help you use your
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INSIDE
Today's HE Washers ..
Today's HE Detergents... 6
Using Laundry Products in HE Washers.
Q&A: Your HE Washer........ 10
Q&A: Using HE Detergents 11
Q&A: Maintaining Your HE Washer..
Tips for Using Dispensers. seeeneneceeseetnensesen 15
americandaring nse
www.cleaninginstitute.org
BRINGING HIGH EFFICIENCY
To the Laundry Room
When high efficiency washers hit the
HE stands forhigh market a decade ago, their water and
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in reference to house- this legacy of advanced technology
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Chances are that the type of In recent years, sales of HE washers
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that revolutionized “doing the With current energy and water
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> As of 2005, sales of HE washers
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In these washers, laundry is more than 15% of the market in
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Preview
(FILED: NEW YORK COUNTY CLERK 0371472014) INDEX NO. 151313/2014 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 03/14/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK HELEN SILLER, Index No.: 151313/2014 Plaintiff, AFFIRMATION OF STEPHEN I. SILLER IN FURTHER SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION -against- THE THIRD BREVOORT CORPORATION, Defendant. STEPHEN I. SILLER, an attorney duly licensed to practice before the courts of the State of New York, and not a party to this action, hereby affirms the following under penalty of perjury: 1 I am the attorney for Plaintiff Helen Siller (“Helen”) in this action and am fully familiar with all of the records and proceedings in this action. I submit this Affirmation in support of Helen’s Application for a Preliminary Injunction pursuant to CPLR 6301 and 631]. No prior application for the relief sought herein has been requested in this or any other action. 2 The relief requested is a preliminary injunction preventing defendant from interfering with, or causing defendant to allow, Helen to replace her broken washer and gas dryer that vents out to Helen’s terrace with like appliances that are Energy Star rated but of different brands than those specified by Defendant in its 2010 and/or 2012 House Rules. The year of adoption is irrelevant to Helen’s Lease, Alteration Agreement and defendant’s Superintendent’s Letter approving Helen’s dryer vent (“Dryer Vent Inspection Letter”), all of which are contracts that defendant cannot by a House Rule unilaterally amend or otherwise change. Complaint 3-9. 3 Helen’s washer, dryer and vent were all approved by defendant in writing in 1990, and those appliances and vent have been in place for 23+ years. Compl. 93. Defendant has refused to allow Plaintiff to do this replacement which materially interferes with her quiet enjoyment of her cooperative apartment and her contract rights. Compl. 442-58. No alterations are involved at all with this washer/dryer replacement which is no different than repairing the broken washer but for the fact that parts are no longer available. Edwin Thirlby Affidavit, dated March 13, 2014 (“Thirlby Aff.”) {J11-13. Plaintiff purchased her first apartment in 1980 and in 1990 purchased her second, adjoining apartment that Defendant in writing allowed Plaintiff to combine with the first apartment and to install the washer, dryer and vent. Compl. 9928-37. 4. At our hearing before this Court on Tuesday, February 18, 2014 (“2/18 Hearing”), the Court advised the parties that: ¢ Based on the Court’s familiarity with the law involving coops and alteration agreements, the business judgment rule did not apply at this time on this Motion. The Court would grandfather Helen’s continued use of the gas dryer and vent out to Helen’s terrace. I should provide defendant with the sudsing specifications for the Frigidaire washer Helen desired to install (“Washer”) and if the sudsing of that Washer was comparable to or better than the sudsing of defendant’s brands, the Court would allow Helen to purchase and install that Washer. 5 Immediately following the 2/18 Hearing, I did exactly what the Court directed me to do. Although defendant already, since January 31, 2014, had the specifications for the Washer Helen proposes to buy and install,! I sent defendant’s counsel two emails, attached as Exhibits 1 and 2 to this Affirmation, attaching documentary information demonstrating that (a) contrary to what defendant’s president and counsel told this Court at the 2/18 Hearing, the brand of washer is irrelevant to sudsing because it is the nature and quantity of detergent that determines sudsing in a front loading washer, which Helen’s proposed Washer and defendant’s approved washers all are, and (b) the brand of Washer Helen proposes to install actually exceeds the specifications for a comparably sized washer that defendant has approved. 6 Defendant has not replied to those two emails. I also sent copies of those two emails to defendant’s new counsel, Mr. Margolis, at 10:54 am by email on March 5, 2014, the same day Document #14, defendant’s Notice of Change of Attorney was e-filed in this action. While the parties have exchanged settlement proposals, defendant still has not responded to my two emails and still refuses to resolve this Motion along the lines the Court directed at the 2/18 Hearing. Defendant told me “go to court” (Compl. 51) and here we still are even though the data in my two emails demonstrated that Helen’s brand of Washer actually exceeds the water and energy specifications for defendant’s brand, and being a front loading washing machine has the same sudsing attributes as do defendant's specified brands of washers. 7 Defendant’s reply papers continue to assert this “brand determines the suds” argument in 15 of the February 17, 2014 Affirmation of Diane C. Nardone, defendant’s president (“Nardone Aff.”). Defendant’s “suds” argument proves that defendant’s specification in its 2010 or 2012 House Rules of specific brands is neither “reasonable” nor “necessary for the operation and control of the building” as Lease 416 requires all House Rules to be. Compl. 499- 12. Please see {6-11 and 14 of the March 8, 2014 Affidavit of Mr. Stephen Ross (“Ross Aff.”), "1 sent the defendant’s Managing Agent the following email on January 31, 2014 at 7:56 am (Compl. 943): “Here are the links to the specifications for the washer and dryer we are considering; I have also copied the specifications into this email below. The dryer would stack on top of the washer, both arefront-loading:” an experienced appliance industry executive, who states that the nature and quantity of the laundry detergent, not the brand of washing machine, determines the amount of suds. 8. Lease 416 is clear: “The Lessor may from time to time establish such reasonable house rules as its board of directors may deem necessary for the management and control of the building, and may also from time to time alter, amend and repeal such rules.” (Emphasis added) (Compl. ¥9) Defendant still insists (pp. 4, 16-17 of defendant’s memorandum of law) that (a) because defendant’s board adopted new House Rules in 2010 or 2012 or both years, those rules must ipso facto be both “reasonable” and “necessary for the operation and control of the building” even if on their face they are not, and (b) the business judgment rule applies to protect defendant’s adoption of rules that are neither “reasonable” nor “necessary for the operation and control of the building” as those new House Rules are applied to Helen’s existing and approved alterations inclusive of her washer, dryer and dryer vent. 9 That these new House Rules are neither “reasonable” nor “necessary for the operation and control of the building” can be determined from the Nardone Aff. which contains at least five false or misleading statements that can only have been intended to create the illusion that these new House Rules comply with the mandate of Lease 916: (1) Nardone Aff. {15 that states “[uJnlike the brand chosen by [Helen], [defendant’s] recommended brands are low sudsing machines” is false or misleading because the brand does not determine the amount of suds and Helen’s proposed Washer being a front loader is by definition a low sudsing machine. See Exhibit 1 and Ross Aff. f{10-11. (2) Nardone Aff. §15 that states that defendant’s brands are “recommended” is false or misleading because Nardone Aff. 414 states that defendant’s washer/dryer brands are “limited” to three as is stated in House Rule #4 (“‘a Lessee seeking approval to install a washing machine and/or clothes dryer is limited to three brands: Miele, Bosch, and Asko”) (Emphasis added) Compl. 410.1. (3) Nardone Aff. 17 that states that defendant’s “alteration agreement now requires shareholders to install several failsafe measures to ensure that washer/dryers do not cause floods in the building” is false or misleading because defendant's alterations agreement is silent about any failsafe measures (ignoring the fact that a stand-alone dryer cannot cause a flood). See Ex. 1 to Helen’s Affidavit in Further Support (“Helen Aff.”) and paragraph 11 below. (4) Nardone Aff. 17 states that defendant’s self-venting dryer House Rule #4 (Compl. 410.1) exists to “[allow] them [self-venting dryers] to exist in harmony with a 1955 building by not penetrating and compromising our brick facade” is false or misleading because defendant’s House Rules #78 and 79 actually promote and require increases, to a significant degree, of penetrations to the Building’s facade by prohibiting installation and re-installation of window air Conditioning units and permitting only through-the-wall air conditioning units” which means defendant is happy for the Building fagade to be penetrated and compromised for an air conditioner which makes a far bigger penetration into the building facade and is visible from the Street in most cases than does Helen’s existing dryer vent that is already weatherproof and watertight and not visible from the street. Helen’s Aff. 420 et. seq. (5) Pages 2 and 19 of defendant’s memorandum of law states that Helen’s 23 year old washer and dryer were “allegedly” first approved in 1990 and states on page 7 that the Dryer Vent Inspection Letter was “allegedly” signed by defendant’s superintendent. Defendant > House Rule #78 states: “No window air conditioner may be installed OR replaced in any apartment without the express prior written consent of the Lessor.” House Rule #79 incorporates by reference the form of defendant’s “most current Alterations Agreement and all attached Exhibits.” §10(j) of that form of Alterations Agreement, which is attached as Exhibit 1 to Helen’s Aff., provides: “Through-the-wall air conditioners are the ONLY units [of air conditioner] permitted.” possesses in its business records all of defendant’s approvals of Helen’s alterations, including defendant’s engineer’s approval letter, board minutes, Alteration Agreement, and Dryer Vent Inspection Letter. (Compl. {4-5 and 30-34; Helen’s Aff. 915 and Exhibit 1 to Helen’s Aff.) Is defendant again misleading this Court by suggesting defendant did not approve Helen’s apartment combination and her washer, gas dryer and vent in 1990? 10. We respectfully request that the Court strike the Nardone Aff. because there must be a consequence to a lawyer (Nardone Aff. 1) making false and misleading statements to a Court. See NY DR 7-102(A)(1).? 11. The only issue about the washer is what ancillary devices need to be installed with it. Nardone Aff. 17 states that defendant’s current form of alterations agreement requires the installation of lead pans under the washer, a safety shut off valve, and a flood stop mechanism. Paragraph 9(3) above demonstrates that this statement in the Nardone Aff. is false because these three devices are not mentioned in the alteration agreement (or the House Rules). It is the Nardone Aff. and not any House Rule or alteration agreement that requires these devices. The Nardone Aff. does not a House Rule make. 12. Helen has maintained a water shut-off valve for her washer for the past 23+ years and that should be sufficient for the new Washer. Helen’s Aff. 911. It is clear from Ross Aff. 111 that the additional two devices are fairly useless. Mr. Edwin Thirlby’s March 13, 2014 affidavit {913-16 (“Thirlby Aff.”) states that these two additional devices would be irrelevant to a flood caused by a leak in the washer’s outer tub or water pump. In fact, one of the devices 3 NY DR 7-102(A)(1) prohibits a lawyer from taking any action in litigation that would serve “merely” to “harass or maliciously injure” another person. The qualifier “merely” means that the five false or misleading statements would not violate this rule if they have some legitimate purpose other than harassing or injuring Helen. There is no legitimate purpose for those five false or misleading statements and it is clear they had to have been made to harass and injure Helen. This DR also applies to defendant’s counsel who has repeated his client’s false or misleading statements without independent investigation. defendant in Nardone Aff. 17 insists on having installed would allow water to run unchecked for two hours which makes that device “fairly useless” as stated in Ross Aff. 411; Thirlby Aff. 1110, 13-16. There always has been present in the apartment at least one responsible adult at all times that my washing machine is being used, and the water shut off value is always turned off when the wash cycle finishes and the clothes are put into the dryer. And I mean always in the entire 23 plus years I have had my washer and dryer.”(Helen’s Aff. 11) 13. I personally attest to the (a) accuracy of this statement in Helen’s Aff. 911 after being married to Helen for nearly 43 years, (b) fact that Helen’s washer, dryer and dryer vent have become a necessity for her for which she paid defendant in terms of an alteration fee in 1990, and maintenance on two apartments and many assessments over the years, and (c) fact that having and maintaining this necessity was a significant motivating factor in Helen (and me in 1990) buying the second apartment, a fact we gave defendant notice of. Compl. 429. 14, Defendant wants Helen to sign a new alteration agreement. Doing that essentially would acknowledge defendant can compel Helen to close up all the brick penetrations defendant previously approved. Since there are no alterations involved here, Thirlby Aff. 418, Ross Aff. 416, no new alterations agreement should be required to be signed by Helen. Moreover, defendant allowed Helen to replace a wall air conditioner in 2013 without any new alterations agreement being signed and only an insurance certificate provided. Compl. 67; Helen’s Aff. Exhibit 9 and 939. 15. The Court told defendant’s counsel and me at the 2/18 Hearing that the Court would allow plaintiff to continue using the existing gas dryer vent and the Court would grandfather that use. There is simply no legitimate reason defendant’s self-venting dryer rule should apply to Helen when she has had a weatherproof and watertight dryer vent for the past 23 years. See Thirlby Aff. {{13-17; Ross Aff. 491 1(e), 13 and 17-18. 16. Page 2 of defendant’s memorandum of law acknowledges that Helen’s dryer vent is “small” but disingenuously states that defendant “is willing to bear all cost to close, re-brick and weatherproof this small hole” without acknowledging that (a) extensive and expensive electrical alterations and upgrades would be needed to accommodate a 220 volt electric self- venting dryer because Helen has a 115 volt gas dryer, (b) interior cabinets would need to be removed, repaired and replaced, (c) the interior walls would need to be plastered and Helen’s laundry room taken apart and painted, (d) Helen doesn’t want or need any of these alterations (Helen’s Aff 35; Thirlby Aff 418; Ross Aff $16 (“I fail to see how disconnecting an existing gas dryer that ducts to an existing external vent and removing it from plaintiff's apartment, and delivering a new gas dryer and connecting it to the exact same connections, is an alteration of anything, particularly when the old and new dryers are both 115 volt units.”)), and (e) there is nothing wrong with the dryer vent (Thirlby Aff 18, 9 (“I do not understand how this makes any sense, especially when the dryer vent is in good working order as far as I know.”); and Ross Aff ‘1! 1(€), () and (g) (“Installing a washer and dryer, particularly a dryer that already has an existing gas connection and an existing duct to an existing exterior vent that is already weather- proof, involves merely disconnecting the old units and connecting the new units to the existing connections which in my experience is far more efficient and less costly than doing what defendant proposes. Why tamper with an existing and weather-proof exterior vent that is functioning well?”). 17. Defendant omits telling the Court not only that its House Rules promote and increase brick penetrations by mandating removal of window air conditioners and installation of wall units, supra, text at footnote 2, but that defendant’s Building already has at least 1,977 penetrations (1,242 brick penetrations and 735 coping stone penetrations), only one of which is Helen’s small dryer vent. Helen’s Aff. 928-30. “The building penetration in issue here, my tiny dryer vent, is not visible from the street and thus amounts to just 1 out of 1,242 brick penetrations and 1 out of 1,977 total building penetrations,’ or .0008% of all brick penetrations and .0005% of all penetrations.” Helen’s Aff. 930. 18. If there are very few existing dryer vents or if Helen’s is the only existing dryer vent, which pp. 12-13 of defendant’s memorandum of law suggests, then how can defendant in good faith claim the new self-venting dryer House Rule as it applies to existing dryer vents was not targeted at Helen? Helen’s Aff. 424. 19. All Helen wants to do is maintain what she has. “Defendant cannot be prejudiced if at this time I replaced what I have with a new Washer and gas dryer without the additional electric flood control device and under-washer pan because (a) that is what defendant approved 23 years ago, (b) there has been no problem whatsoever from my washer in those 23 years, (c) I will continue to maintain my water shut-off valve, and (d) I will continue to have a responsible adult in my apartment whenever the Washer is used who will turn off the water shut-off valve when the washer is finished. There must be a consequence to defendant misleading this Court and that consequence should be that I can install the new Washer and maintain the water shut-off valve which is not even a mandate found in defendant’s House Rules or alterations agreement, and install a gas dryer that vents to my existing terrace vent.” Helen’s Aff. 912. “The number of penetrations is probably greater than 1,977 particularly due to defendants mandate to replace window air conditioners with through-the-wall air conditioners and I could not count all the exterior lights, faucets and other penetrations throughout the Building’s exterior on its 20 floors and exterior of the basement. 20. Page 3 of defendant’s memorandum of law refers to a “lawyer-witness” rule to attempt to deny me the right to act for Helen. Helen can testify to whatever I can testify to and I have no objection to being deposed, and I would obtain separate representation for that. Helen’s Aff. 934. Defendant’s reliance at footnote 6 on page 9 of defendant’s memorandum of law on Smolenski v. T.G.1. Friday’s. Inc., 15 Misc.2d 791, 834 N.Y.S.2d 430 (Supreme Nassau 2007), is misplaced because there was no “incident” here that I witnessed. My testimony might be needed only to authenticate the emails I sent to defendant’s managing agent and president, but that is only because in defendant’s Verified Answer, defendant denies that the managing agent or defendant's president received those emails and that the Complaint accurately quotes them. See Compl. {42-57 and defendant’s denials of those paragraphs in its Verified Answer. Defendant thus attempts to bootstrap its own bad faith and misconduct in submitting what is in essence a general denial into an attorney disqualification. Defendant also seems to ignore Compl. 424 which states that | am not a necessary party to this action: “If Stephen is a necessary party, then plaintiff and Stephen would proceed with this action pro se or would do so with the assistance of one or more other attorneys.” Is it an act of desperation by defendant to essentially threaten to disqualify me when defendant failed to raise that before the Court at the 2/18 Hearing and by their conduct should be deemed to have waived that argument? 21. Defendant makes a point that Helen seems not to have known about defendant’s 2010 House Rules. Helen said she did not have a copy of the 2010 House Rules, Helen’s Aff. ‘38, and p. 8 of defendant’s memorandum of law said the language of section 4 regarding washers and dryers did not change so we fail to understand why defendant thinks it in the least important whether defendant adopted this House Rule in 2010 or 2012. Whether defendant’s new House Rules were new to Helen in 2010 or 2012 is irrelevant to this Motion. What is 10 relevant is that House Rules adopted in 2010 or 2012 were sufficiently removed from the 1985 House Rules to be viewed by Helen as “new.” 22. Page 3 of defendant’s memorandum of law refers to a Lease provision purportedly requiring Helen to have given defendant 30 days’ notice before suing. The law does not require Helen to do a useless act. On behalf of Helen, 1 asked permission on January 31, 2014 to do what Helen proposes, and defendant told me on February 4, 2014 to go to court. Compl. §51. CPLR 6311 allows for preliminary injunctions on notice to defendant and that is what Helen seeks. Defendant received notice and has responded. It would have been useless for Helen to wait any period of time because defendant said no to her request and that was defendant’s “final word.” Compl. 956. 23. The factual misstatements in defendant’s memorandum of law are addressed in Helen’s Aff. In addition to the Court’s statement to the parties’ counsel at the 2/18 Hearing that the Court had experience from a four week trial in a coop alteration agreement case to conclude that the business judgment rule did not apply here, I would add to my e-filed Memorandum of Law (“Siller Memo of Law”) in response to defendant’s memorandum of law the following few points: a. Further to the discussion on pages 3-4 of the Siller Memo of Law of Babeli v. 7- 11 East 13th Street Tenant Corp., NY Supreme Court, NYLJ December 3, 2003 (“Babeli’”) (Exhibit A to the Siller Memo of Law), defendant ignores Lease 19 which imposes a continuing obligation on Helen to replace what she installed during her 1990 alterations. While cases with facts like those in this action are few and far between because most boards and most cooperators act reasonably, Babeli is closest to our facts because of the continuing nature of Helen’s obligations just like the plaintiff in Babeli had not only a desire but an obligation to finish her 11 renovations pursuant to an Alteration Agreement. Defendant’s Alteration Agreement (Compl. Ex. | and Helen’s Aff. Ex. 1) imposes obligations on Helen to complete renovations and Lease [19 requires Helen to replace what she’s installed in her renovations. Defendant devotes one sentence to Babeli. b. Defendant likewise devoted one sentence to Residential Board of Managers of Columbia Condominium y. Alden, 178 A.D.2d 121 (1 Dept. 1991) (“Alden”) (Exhibit B to the Siller Memo of Law) which is the case the Court relied on in deciding Babeli. Defendant ignored the language in the First Department’s holding and the cases cited in Alden. For example: “Haberman v. Hawkins, 170 A.D.2d 377 [landlord estopped from recovering possession based on unauthorized alterations where landlord consented to alterations and waited four years before alleging violation of lease]; Newmann v Mapama Corp., 96 A.D.2d 793, 794 [preliminary injunction requiring removal of alterations to leased premises reversed in the absence of any showing of imminent danger or irreparable harm]).” Jd. at 123. ¢. As expected, defendant relies on Matter of Levandusky v One Fifth Avenue Apt. Corp., 75 N.¥.2d 530 (1990) (“Levandusky”) and the “business judgment rule” articulated therein. Defendant ignores the First Department’s discussion in Alden about Levandusky: “In the cases relied upon by Supreme Court (Matter of Levandusky v One Fifth Avenue Apt. Corp., 75 N.Y.2d 530, 540; Board of Managers of the Ocean Terrace Towne House Condominium v Lent, 148 A.D.2d 408, lv denied, 75 N.Y.2d 702, and others), defendant either had not sought or had been expressly denied approval for an alteration or renovation, but nevertheless proceeded in defiance of the board's rules or decisions. In none of these cases did the landlord or board try to stop construction or compel demolition of the renovations it had approved. If defendants are compelled to tear down the renovations, they will be deprived of the use of the common hallway 12 leased from plaintiff, for which they have already paid $6,300 in rent and $10,000 as asecurity deposit and for which they remain obligated to pay rent during the pendency of this action. Finally, if defendants ultimately prevail, they will have been forced to incur the unnecessary expense of demolition and reconstruction.” Jd. at 123. (Emphasis added) d In relying on Alden, the New York County Supreme Court in Babeli said that “defendants have prevented plaintiff from proceeding with the renovation by imposing additional approvals not contemplated in the Alteration Agreement” and “Plaintiff seeks a preliminary injunction allowing her to continue and complete the alterations.” That is the situation here where defendant is preventing Helen from proceeding with a mere replacement of a washer and gas dryer that involves no alterations at all and which Helen is required to replace under Lease 419. Defendant is preventing that by requiring Helen to sign a new alteration agreement and in compelling that to agree to new House Rules that were never contemplated in the Lease or the Alteration Agreement Helen signed. €. Defendant says the Lease allows defendant to change the House Rules. Defendant gives Lease 416 short shrift in its explicit requirements: “The Lessor may from time to time establish such reasonable house rules as its board of directors may deem necessary for the management and control of the building, and may also from time to time alter, amend and repeal such rules.” (Emphasis added) Since all House Rules must be reasonable and necessary for the management and control of the building, all House Rule amendments must likewise be reasonable and necessary for the management and control of the building. f. Section 6 of defendant’s by-laws (p. 4 of defendant’s memorandum of law) allowing defendant’s board to change the house rules does not abrogate Lease 416 in the least so whenever the board deems it advisable to amend the House Rules, those amended House Rules 13 must be “reasonable” and “necessary for the management and control of the building.” The by- laws and Lease were filed as part of defendant’s Offering Statement and must be read together. Defendant’s attempt on pp. 16-17 of defendant’s memorandum of law to imply that Section 6 of the by-laws has no words like the reasonable and necessary words in Lease $16 does not mean defendant’s board can do whatever it wants without regard to Lease 416’s standards. Similarly, defendant’s quote from Abeles on pp. 19-20 of its memorandum of law about the board there having the right to amend the house rules ignores Lease 416 that deals expressly with House Rule amendments and requires them to be both “reasonable” and “necessary for the operation and control of the Building.” For defendant’s reading of the by-laws to be correct, the Court must ignore Lease 416, the Alteration Agreement Helen signed and the Dryer Vent Inspection Letter. As Helen said in Helen’s Aff. 439, defendant’s position is that “an agreement is an agreement except when the agreement is with The Third Brevoort Corporation.” Then why does defendant have any alteration agreements that defendant denominates as “agreements” if defendant can change them unilaterally? f. The late charges in Allen v. Murray House Owners Corp., 174 A.D.2d 400, 571 N.Y.S.2d 698 (1 Dept. 1991) are irrelevant to the facts in this action but defendant’s quotation from that case about the power of the board to adopt or amend “reasonable” rules buttresses my argument here. Whether the late charges in that case were reasonable is not analogous to whether defendant’s dryer vent House Rule and three-brand washer/dryer House Rule limitation are reasonable. We have by Helen’s Affidavit, Mr. Ross’s Affidavit and Mr. Thirlby’s Affidavit, as well as Ms. Nardone’s own words in her Affirmation, proven that these new House Rules are neither reasonable nor necessary for the operation and control of the Building. 14 g Defendant misconstrues the holding in Ludwig v 25 Plaza Tenants Corp., 184 A.D.2d 623 (2d Dept 1992). Pages 7-8 of the Siller Memo of Law stated: “]See also Cannon Point N. v. Abeles, 160 Misc.2d 30, 612 N.Y.S.2d 289 (App. Term 1* Dept. 1993) (“Abeles”) in which no approvals had been granted for installation of a washer and dryer, unlike in this case where Defendant did grant its written approval; in Abeles, the concurring opinion referred to a then-recent Appellate Division, Second Department case and said that the business judgment rule would not apply when the board action is contrary to the proprietary lease such as the Lease in our case: “In a case decided shortly after Levandusky, the Second Department held that the business judgment rule does not apply to decisions and actions of a co-op board which violate the express terms of a proprietary lease requiring that decisions be made on a reasonable basis (Ludwig v 25 Plaza Tenants Corp., 184 A.D.2d 623 [2d Dept 1992]). As the Court wrote there: "Where * * * the Board's actions clearly violate the express terms of the proprietary lease, the “business judgment rule is inapplicable (see, Fe Bland v Two Trees Mgt. Co., 66 N.Y.2d 556, 563, 565 [1985]).” Id. (Exhibit C), 160 Misc.2d at 33. The Lease in our case requires that Defendant’s house rules must be “reasonable” and must be “necessary for the management and control of the building.” Complaint Paragraph 9. “Importantly, where the goveming documents require that house rules be ‘reasonable,’ courts may not apply the more broad deferential business judgment rule standard in determining whether a board has acted within itsauthority.” (id. (Exhibit C) and cases cited therein) Accordingly, the Lease, Alteration Agreement and Dryer Vent Inspection Letter cannot be trumped or abrogated by Defendant’s subsequent 2012 House Rule.” h, Defendant ignored Jefferson Associates v. Miller, 63 Misc.2d 1056 (Civ. Ct. Queens 1970) (Siller memo of Law pp. 10-11) regarding the absence of any mention in 15 defendant’s Lease, alteration agreement or House Rules about the three devices mentioned in Nardone Aff {17 being required to be installed by shareholders wishing to replace or install a washer (even though this Jefferson case involved a pet). “It should be noted that nowhere in the lease itself is there any mention made of the harboring of a dog so as to constitute a substantial violation. [Citations omitted.] The rules and regulations, not signed by the tenants, which appear on the back of the printed form of the lease, is the only place where there is any mention made of the harboring of a dog.” Here, there is no mention of any of the three devices in any of the Lease, by-laws, House Rules or alteration agreement, only in Nardone Aff 417, and that does not create a House Rule or anything else that can remotely be viewed as binding on Helen. Perhaps we missed mention of these three devices somewhere in the Lease, by-laws, alteration agreement or House Rules, but interestingly defendant does not cite to any of those documents when referring to those three devices, only to Nardone Aff 417. This is yet another reason the Nardone Affirmation should be stricken in its entirety. Stating to the Court that a House Rule or provision in an alteration agreement exists when it does not is not acceptable under any circumstance. 1 Defendant’s citation to the 1985 House Rules on p. 5 of its memorandum of law is what this case is about. If Helen did not keep in repair her washer, defendant could “remove the same.” Helen cannot repair her 23+ year old washer since parts are no longer available. Helen’s Aff. 1919, 25, Compl. $41. Defendant is impeding Helen’s ability to comply with Section 3.3 of defendant’s 1985 House Rules quoted on p. 5 of defendant’s memorandum of law. And Helen is justified in her fear that if she does not replace her washer and gas dryer, defendant will assert a violation and attempt to evict her as defendant has attempted or done to a shareholder who merely put information circulars in shareholders’ mailboxes (Ex. 7 and 8 to Helen’s Aff.) 16 J Defendant says on page 10 of its memorandum of law that a preliminary injunction is a “drastic remedy.” A preliminary injunction on the facts in this action which revolve around defendant's unreasonable behavior is not at all “drastic” but certainly isurgent. Helen should have had approval on February 5, 2014 if not before then to have installed her new Washer and gas dryer. Defendant’s view of irreparable harm ignores the fact that Helen has a broken washer that should be simple to replace but for defendant’s misconduct here. Helen’s Aff. 1919, 25, Compl. §41. Helen does not really focus on cost for bricking up the dryer vent because the issue here is not plugging up the dryer vent. Cost was mentioned only because defendant’s emails set forth in the Complaint ignored the cost and disruption to Helen and her apartment if defendant could close up the dryer vent. k Page 16 of defendant’s memorandum of law repeats defendant’s hope that the business judgment rule applies to allow defendant to adopt House Rules that are neither reasonable nor necessary for the operation and control of the Building. The Court told defendant’s counsel at the 2/18 Hearing that the business judgment rule did not apply here. My original Memorandum of Law supports the Court’s conclusion. 1 As stated in Babeli, “[a] party seeking a preliminary injunction must establish (1) a likelihood of success on the merits of the underlying action; (2) the prospect of irreparable injury if the provisional relief is withheld; and (3) a balance of the equities tipping in its favor. Olympic Tower Condominium v. Cocoziello, 306 AD2d 159, 160 (1st Dept 2003).” Babeli, Exhibit A to the Siller Memo of Law. Helen has met these three requirements. 24. We have provided the Court with a proposed form of Preliminary Injunction which has been e-filed separately and is also attached as Exhibit 3. Based on the foregoing and 17 the Affidavits submitted with my Affirmation, there is no reason the Court should not issue Helen the preliminary injunction requested herein. Stephen I. Siller 18 EXHI S BIT 1 ~SILLER FEBRUARY —_————— B 19, 2014 EMAIL EE EN TO UE DEFENDANT’S ENDANI'S ‘COUNSEL 19 Stephen Siller From: Stephen Siller Sent: Wednesday, February 19, 2014 9:49 AM To: ‘Marc L. Antonecchia - Holland & Knight LLP (marc.antonecchia@hklaw.com)' Ce: ssiller@stephensiller.com Subject: Suds and Brands Attachments: HE.PDF; 02-19-2014 07;13;35AM.PDF; 02-19-2014 07;19;47AM.PDF Dear Marc, At yesterday's court hearing you had no option other than to parrot Ms. Nardone’s “concern about the suds a washing machine makes” as the basis for the Coop Board’s limitation on a Cooperator’s choice of washing machine to three specified brands. That was nonsense and | am being polite. While | will deal with Ms. Nardone’s other nonsense, inaccuracies (and | am again being polite) and invective evident in her Affirmation and in her emails with me, | want to address what the Judge told us to do which is to attempt to resolve the washer-dryer-vent part of the case: 1. Suds. See the attached paper from the Cleaning Institute. “HE detergents are formulated to be low-sudsing and quick-dispersing to get the best cleaning performance with HE washers.” P. 6. It is the nature and quantity of the detergent that causes suds, not the machine. The Coop has not legislated what detergents a Cooperator Can use and suspect the Coop would not do that as that would not be enforceable. See page 7 as well about “regular sudsing” detergents and using “the recommended amount of detergent for your wash load size and amount of soil.” Page 8 says: “Follow the detergent manufacturer's instructions to determine the correct amount of detergent to use.” The bottom of page 8 discusses over-sudsing from pre-treat and pre-soak Products — again, over-sudsing is a function of the product and quantity of the product used — not the brand of washer. Page 11 says: “Using a regular detergent in an HE washer can create too many suds.” And” “The tumble action of high-efficiency washers creates more suds than the agitator action of traditional washers.” We know that Ms. Nardone has legislated using only HE washers so it would seem her mandate as to type — not brand -- of washer is responsible for too much suds. Page 12 discusses using an HE detergent to solve the suds issue — again, nothing to do with the brand of washer. | believe you heard me tell the Judge that in my youth | installed and repaired appliances, including washers. It was well known even four decades ago that excess sudsing was due to using too much detergent. Of course, the formulation of detergents has changed in these four decades but the amount of sudsing remains primarily a function of the quantity of detergent used. | suspect that Ms. Nardone may nevertheless persist in her nonsensical argument about the impact on sudsing of the brand of machine. High Efficiency washers and suds. Page 5 of the same publication says: “All front loading washing machines are HE [High Efficiency] and use low-water levels in the wash and rinse process.” Thus all front loaders are HE. The Frigidaire washer whose specifications we sent to the Managing Agent showed that my wife is buying a front loader— which is by definition an HE machine. | suspect Ms. Nardone did not look at those specifications. In any event, please send me all the “extensive research” Ms. Nardone or the Coop Board did on washer brands. The Frigidaire we proposed is more HE than the Asko. The HE front loading Frigidaire my wife is buying is compared in the second attachment to a Nardone-approved Asko washer. We compared these two because this Asko is closest in capacity to the Frigidaire. Asko is one of the Coop’s/Ms. Nardone’s three approved brands. This comparison comes from the US Government's Energy Star website. Both are front loaders. The tub capacity volume of each is the same (difference of .04 cubic feet which is nothing). The MEF on the Frigidaire is higher and therefore the Frigidaire is a more efficient unit than the Asko. The WF on the Frigidaire is 1 lower than the WF on the Asko so the Frigidaire is more efficient than the Asko. See the third attachment which likewise is from the US Government Energy Star website. Dryer. The US Government Energy Star website does not rate clothes dryers. You heard the Judge tell us that an appliance that uses 115V and 15 or 20 amps uses less electricity than a higher voltage, higher amperage appliance which the three Nardone-specified brands are. We sent the specifications on the Frigidaire dryer my wife is purchasing to the Managing Agent. It uses 115V. Electric usage is measured in watts times hours of use. Since washers/dryers will run for roughly the same time regardless of brand, it is axiomatic that the Energy Star rating will guide us and the Frigidaire’s rating shows it is more electrically efficient than the comparable Asko. For your information, Volts times Amperage equals Watts or electric consumption. By definition a 20 Amp appliance that uses 115V uses less electricity than a 20 Amp 230 Volt appliance. 5. Ment. You also heard the Judge say the vent would be grandfathered. The Judge asked me to do the research and provide it to you. | have now done that. | ask that you not prolong the Coop’s/Ms. Nardone’s refusal to allow my wife to replace her washer and dryer with the Frigidaire models previously specified. As| told you and the Court, we installed a water shut off valve 23 years ago so we were ahead of the Coop and Ms. Nardone on that one. Installing a catch pan and 2 hour limit device is also fine even though a 2 hour limit device is superfluous as the water to the washer is always shut off immediately after the washer stops. A new alterations agreement is not fine — none was needed when we replaced the air conditioner last year and the existing Alteration Agreement and Lease covers this replacement. An insurance certificate is also fine (as we have always proffered). You should know that in the 23 years the washer/dryer have existed, there has never, not once, ever been a flooding or drain clogging issue. We installed the water cut-off when no one else had ever heard of one. On the other hand, as Ms. Nardone will tell you, we have endured countless and | mean countless floods from the Building, never from the washing machine. And we still have water coming into our kitchen window sash that the Building’s engineer told us more than a year ago he would address. He has never gotten back to us. Just like Ms. Nardone emailed me that she would get back to us in “a day or two.” She didn’t and caused the need on our part to seek relief from a court as Ms. Nardone told us to do. Ms. Nardone seems to have made this personal, most likely because she does not like anyone to question anything she’s done or wants to do. She can provide you with the questions | have asked over the years. All of them have been based on the best interests of the Coop which has been our home for 33 -1/2 years, including when this Building was warmer and friendlier -- the word is Haimish — as opposed to the “dictatorship” it seems to have become. What does the Coop/Ms. Nardone wish to do? Thank you. Steve Siller 212-981-2330 ml Clana a (@ aNey? MAVTs al=l aca lave Mm BYalcclce[=aes ce) NV Vela diate tama elanavoyanvare) Schou starclconvarelare mV clecle 1g institute Pees TTS a) HE Washers and HE Detergents — Working in Harmony to Save Energy and Water About This Guide: Compared to traditional washers, HE washers work in a completely different way. As a result, the detergents used in HE washers need to work differently, too. That's why the American Cleaning Institute" and washing machine experts from around the country have worked together to bring you this handy resource. » You'll discover how HE washers and HE detergents work... and how to properly use these customized laundry products in your HE washing machine. » In addition, you'll find straightforward answers to your most frequently asked questions about “doing your laundry the HE way.” So read on for important information that will help you use your HE washer and HE laundry products together to save water and energy, while getting your laundry as clean as ever! 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