Complaint,Petition: Helen Siller INDIVIDUALLY AND DERIVATIVELY AS A SHAREHOLDER OF AND ON BEHALF OF THE THIRD BREVOORT CORP v. The Third Brevoort Corporation, Diane C Nardone, Cliff Russo, Elizabeth Louie, Andrew Baum, George Aloi, Christine Beck, Bonnie Hiller, Mortimor C Lazarus, Jane Warren, John C Woell, Barbara Eisenberg

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                                (FILED: NEW YORK COUNTY CLERK 0372872014)                                                                  INDEX   NO.   151313/2014
NYSCEF   DOC.     NO.     33                                                                        RECEIVED   NYSCEF:     03/28/2014




                 SUPREME COURT OF THE STATE OF NEW                         YORK
                 COUNTY OF NEW YORK
                                                                                       Index No. 151313/2014
                 Helen Siller,
                 Individually and derivatively as a shareholder                        Amended
                 of, and on behalf of, The Third Brevoort                              Summons
                 Corporation,
                                                                    Plaintiff,         March 28, 2014
                -against-
                                                                                       Basis for Venue: CPLR 503(a)
                The Third Brevoort Corporation,
                Diane          C.   Nardone,   Cliff   Russo,   Elizabeth Louie, |
                Andrew Baum, George Aloi, Christine Beck, Bonnie|
                Hiller, Mortimor C. Lazarus, Jane Warren, John C.
                Woell, and Barbara Eisenberg,

                                                                    Defendants.

                To the above named Defendants:

                The Third Brevoort Corporation, Diane C. Nardone, Cliff Russo,
                Elizabeth Louie, Andrew Baum, George Aloi, Christine Beck, Bonnie Hiller,
                Mortimor C. Lazarus, Jane Warren, John C. Woell, and Barbara Eisenberg,
                11 Fifth Avenue, New York, New York 10003-4342

                          You are hereby summoned to answer the First Amended                 Verified Complaint in this
                action and to serve a copy of your answer, or, if the First Amended Verified Complaint is not
                served with this summons, to serve a notice of appearance, on the Plaintiff's attorney within 20
                days after the service of this summons, exclusive of the day of service (or within 30 days after
                the service is complete if this summons is not personally delivered to you within the State of
                New York); and in case of your failure to appear or answer, judgment will be taken against you
                by default for the relief demanded in the First Amended Verified Complaint.

                          The basis of venue is plaintiff's residence, which is in New York County, under CPLR
                503(a).

                Dated: New York, New York                                         ba
                       March 28, 2014
                                                                   Stephen I. Siller
                                                                   Attorney for Plaintiff
                                                                   885 Third Avenue, 16" Floor
                                                                   New York, New York 10022
                                                                   T: 212-981-2330
SUPREME COURT OF THE STATE OF NEW                         YORK
 COUNTY OF NEW YORK
wenn nnn nnn               nnn een nen!
HELEN SILLER,
Individually and derivatively as a shareholder
of, and on behalf of, The Third Brevoort
Corporation,

                            Plaintiff.

             -against-                                        Index No. 151313/2014

THE THIRD BREVOORT
CORPORATION, Diane C. Nardone, Cliff                           FIRST AMENDED
Russo, Elizabeth Louie, Andrew Baum,                         VERIFIED COMPLAINT
George Aloi, Christine Beck, Bonnie Hiller,
Mortimor C. Lazarus, Jane Warren, John C.
Woell, and Barbara Eisenberg,

                            Defendants.
wane e ene           nnn nen               eee!


             Plaintiff, by her attorney, Stephen I. Siler, for her Verified Complaint alleges as follows:

                                PRELIMINARY         STATEMENT OF THE CASE

             1     Plaintiff Helen Siller (“plaintiff” or “Helen”) installed in her two combined

apartments 12R and 12T (“12R/T”) in The Brevoort, 11 Fifth Avenue, New York, New York

10003-4342 (“Brevoort” or “Building”), (a) a 115 volt washing machine and a 115 volt gas dryer

that are stacked with the gas dryer attached to the top of the same metal frame the washer nestles

into (“Existing Washer and Gas Dryer’), (b) a small weatherproof vent the gas dryer exhausts

out to plaintiff's terrace through (“Existing Dryer Vent”), (c) a window air conditioner in the

12R laundry room which was previously a kitchen, and which extends out onto plaintiff's

terrace, (d) two through the bricks air conditioners in 12R/T that extend out past the brick line on

plaintiff's terrace which air conditioners had been in place previously, (e) a split unit air

conditioner in the 12T kitchen that attaches through a small weatherproof hole in the bricks to

the air conditioner’s condenser that is housed in a unit attached to a steel frame that is bolted
                                                       1
onto the bricks on plaintiff's terrace, and (f) a through the bricks stove vent in the 12T kitchen

 that exhausts out onto plaintiff's terrace.

            2    Plaintiff installed the items identified in {1(a) through (e) in1990-1991as part of

 the alterations done when plaintiff and her husband purchased 12R.       At that time plaintiff and her

 husband obtained the written approval of The Third Brevoort Corporation, a New York

 cooperative housing corporation (the “corporate defendant”), to combine their first apartment

 12T (purchased in 1980) with their second, then-contracted for second and adjoining apartment

 12R, and to make these alterations.    The stove vent identified in §1(f) was approved in writing by

the corporate defendant in 1995 when plaintiff installed a restaurant-type stove.     The Existing

Washer and Gas Dryer, the Existing Dryer Vent and the other items listed in {1 (a) through (f) are

collectively called the “Approved Conditions.”      The corporate defendant’s written approvals for

the Approved Conditions are collectively called the “Existing Approvals.”
        2
        3       Plaintiff's washing machine broke in January 2014      and parts are no longer

available for it. Although plaintiff's dryer works, plaintiff needs to replace her Existing Washer

and Gas Dryer because the gas dryer is stacked in the same physical unit as the washer.

        4       Plaintiff's husband advised the corporate defendant of this situation by emails

exchanged between January 31 and February 4, 2014 with the corporate defendant’s (a)

managing agent, Douglas Elliman Property Management (“Managing Agent”) and (b) president,

Diane C. Nardone (“Nardone”).

        5       Helen expected the Managing Agent to advise plaintiff that the only thing plaintiff

needed to do was provide an insurance certificate from the appliance supplier similar to the

insurance certificate plaintiff provided to the Managing Agent on or about June 6, 2013 when

plaintiff replaced one of the through the wall air conditioners that was damaged by the corporate

defendant’s workers or contractors.     That replaced air conditioner is one of the two air
                                                    2
conditioners identified in §1(d) and is one of the subjects of the Existing Approvals.   That

 replaced air conditioner was damaged by defendant’s contractors who in 2012 and 2013 did

 brick and mortar work on plaintiff's terrace and, upon information and belief, those contractors

 caused wet mortar to enter the condenser side of the air conditioner and that turned into chunks

 of mortar or concrete that irreparably damaged plaintiff's air conditioner.   Due to the negligence

 of those contractors and the corporate defendant’s failure to supervise those contractors, plaintiff

was forced to replace that damaged air conditioner on or about June 11, 2013 with a new air

conditioner at a cost to plainti
                             of $1,740.91.
                                    ff           That replaced air conditioner had itself been

replaced in or about 2006 when the corporate defendant’s contractors irreparably damaged two

of plaintiff's air conditioners and the corporate defendant at its cost replaced both of them.

        6.      The corporate defendant and the 11 member board of directors of the corporate

defendant (the “individual defendants”) refused to allow plaintiff to replace her Existing Washer

and Gas Dryer with like machines. Defendants’ reasons for this rejection are in the emails

plaintiffs husband exchanged with the Managing Agent and Nardone, and in Nardone’s

February 17, 2014 Affirmation (“Nardone Aff.”) e-filed as Documents ##9 and 22 in this Action.

        7       Plaintiff and the corporate defendant are parties to two proprietary leases, one for

12R and one for 12T, each dated April 18, 2001 (collectively, the “Lease”.

        8      Lease {6 states: “All proprietary leases of apartments in the building . . . shall be

in the form of this lease, unless the variation is approved by any lessee named therein   and by

lessees owning at least two-thirds in amount of the Lessor’s [corporate defendant’s] shares then

owned by all lessees under proprietary leases then in force.” (Emphasis added)      The Lease thus

cannot be varied without plaintiff's consent and without the consent of shareholder-lessees in the

Building owning at least 2/3 of all outstanding shares.
9       Lease {20 allows “any structural alteratio     ‘on any roof, terrace or balcony

 appurtenant [to an apartment]” with the corporate defendant’s written consent.     The Existing

 Conditions that are through the bricks penetrations, upon information and belief, are structural

alterations, and the Existing Approvals constitute the corporate defendant’s written consents

under Lease 20 to those structural alterations in the Existing Conditions, inclusive of the

Existing Dryer Vent.

        10.     Defendants are prohibited by Lease {6 from doing anything to vary any provision

of the Lease, which includes Lease 20, without plaintiff's consent which has never been given.

        11.     Upon information and belief, Nardone and the Managing Agent, in the email

exchange and in the Nardone Affirmation, on behalf of all of the defendants, told plaintiff in

effect that notwithstanding the Existing Approvals, the corporate defendant’s 2010 House Rules

(2010 House Rules”) #4 and/or the corporate defendant’s 2012 House Rules (“2012 House

Rules”) #4 can vary Lease §20 and as a result (a) plaintiff could not replace her existing 115 volt

gas dryer with anything but a self-venting electric dryer that requires 208/220 volts; (b) plaintiff

could only install one of three specified brands of washers and dryers (which upon information

and belief the defendants increased to four specified brands after adopting the 2012 House

Rules); (c) plaintiff's Existing Dryer Vent must be closed up because defendants wanted “them

[dryers] to exist in harmony with a 1955 building by not penetrating and compromising our brick

fagade” (herein called the “Fabricated Brick Rule”) (Nardone Aff. 415); and (d) the corporate

defendant’s current form of alteration agreement (“New Alteration Agreement”) adopted by the

defendants and incorporated as part of the 2010 and/or 2012 House Rules, according to Nardone

(Nardone Aff. {17) required plaintiff to install three so-called failsafe devices for a new washer

(the “Fabricated Failsafe Rule”).   (The Fabricated Brick Rule and Fabricated Failsafe Rule are

collectively called the “Fabricated Rules”.)
12.    Upon information and belief, it would be defendants’ position that if any

appliance or device involved in any of the other Existing Conditions broke, plaintiff would have

to remove that appliance and device and close up its brick penetration notwithstanding that all

Existing Conditions are the subject of the Existing Approvals.

        13.     Upon information and belief, the 2010 House Rules and/or 2012 House Rules

were adopted by the individual defendants as directors of the corporate defendant.

        14,     Defendants are seeking to regulate plaintiff's conduct as a shareholder in violation

of the Existing Approvals given to plaintiff pursuant to Lease 20, particularly plaintiff's conduct

in continuing to be able to use and enjoy the Existing Conditions with the Existing Approvals, by

defendants, upon information and belief, having (a) promulgated House Rules #4, 77 and 100 in

2010 and 2012 that either expressly or implicitly purport to vary, amend, modify or abrogate the

Lease which is impermissible under Lease 6, (b) fabricated a rule (the Fabricated Failsafe Rule)

that does not exist, and (c) made or caused to be made false and misleading statements to this

Court and to plaintiff in the Nardone Affirmation to support their actions.

        15.     Upon information and belief. the Nardone Affirmation sets forth the following

false and misleading statements made to the Court and to plaintiff:

                (a) Defendant's form of New Alteration Agreement requires three so-called

failsafe devices, when in fact defendant’s form of New Alteration Agreement does not mention

any of these three devices.   While the Fabricated Failsafe Rule does not exist and defendants did

not have to make that rule up, plaintiff advised defendants that plaintiff has had for 23 years and

will continue to maintain the most important of those three devices, which is the water shut off

valve. Upon information and belief, defendants had to have fabricated the Fabricated Failsafe

Rule to mislead the Court and plaintiff. Nardone Aff. #10, 15 and 17.
(b) Nardone Aff. {15 states: “Unlike the brand chosen by the Plaintiff. these

 [three] recommended brands are low sudsing machines” (Emphasis added), when in fact the

 washing machine plaintiff wishes   to install is not only a low sudsing machine, which all front

 loading washers are, but is actually more energy and water efficient than a comparably sized

 brand that is one of the three (or four) brands defendant mandated be installed.       In a February 18,

2014 email to the corporate defendant’s counsel, plaintiff's counsel advised and attached proof

that this statement in the Nardone Affirmation was false and misleading.         That means the

defendants purposely ignored the replacement washer and dryer specifications plaintiff provided

to them by email on February 4, 2014 and again on February 18, 2014.

                (c) Nardone Aff. 15 states that the three brands are “recommended” by the

corporate defendant, when in fact they are mandated.       Nardone said in Nardone Aff. {14 that

“[o]ur solution [“to allow individual shareholders to maintain washer/dryers” (Nardone Aff,

4{13)] was to limit washer/dryer brands to three: Miele, Bosch and Asko.” (Emphasis added)

Those words are limiting words, not recommending words.

               (d) Nardone Aff. 17 states that defendants require removal of plaintiff's Existing

Dryer Vent in order to allow “them [dryers] to exist in harmony with a 1955 building by not

penetrating and compromising our brick fagade” (Fabricated Brick Rule), when in fact:

                       (i) Lease §20 allows “any structural alteration 39 «6, ‘on any roof, terrace or

balcony appurtenant [to an apartment]” with the corporate defendant’s written consent, which

plaintiff obtained and which alterations are the subjects of the Existing Approvals, while

defendants’ 2010 and 2012 House Rule #4 mandating that “[a]ll clothes dryers shall be self-

venting” cannot unilaterally vary, amend, modify or abrogate Lease §20 in violation of Lease 6

which requires plaintiff's consent. No such consent has been given.
(ii) Plaintiff's Existing Dryer Vent is one of the Existing Conditions that

 are the subjects of the Existing Approvals obtained by plaintiff pursuant to Lease 20.       It is not a

 new penetration that is proposed to exist in the bricks as the Fabricated Brick Rule suggests it

 must be due to Nardone’s choice of words “by not penetrating and compromising our brick

 facade.” The Existing Dryer Vent has penetrated the Brevoort’s bricks with the corporate

 defendant’s Existing Approval given pursuant to Lease {20 for more than 23 years.

                        (iii) Nothing in the Lease or in plaintiff's existing alteration agreement

with the corporate defendant (“Existing Alteration Agreement”) mandates closing up any

existing and approved penetrations in the bricks that involve the Existing Conditions that were

installed under the Existing Approvals.    Any new brick penetration might be subject to the

corporate defendant’s written consent under Lease {20, but that is not the case here with respect

to any of the Existing Conditions.

                        (iv) Defendants’ 2010 and 2012 House Rules #78 and #79 mandate an

 increasing number of brick penetrations into and compromises to the Brevoort’s bricks because

those House Rules require all window air conditioners to be replaced with a through-the-bricks

wall air conditioner when the window unit breaks or an apartment is sold. That makes House

Rule #4 applicable, if it is applicable at all, only to new brick penetrations, not to existing ones

that have been approved by the corporate defendant in accordance with and pursuant to Lease

{(20, which is the case with the Existing Conditions, including the Existing Dryer Vent.

                       (v) Even without regard to the increasing number of brick penetrations due

to 2010 and 2012 House Rules #78 and #79, upon information and belief more than 4,176 brick

or other Building fagade penetrations, exist and will continue to exist in the Brevoort for

decades, all of which must have been approved by the corporate defendant, including without

limitation at least:
(A) 105 brick penetrations for terrace doors;

                (B) 105 brick penetrations for terrace water faucets;

                (C) 105 brick penetrations for terrace electric outlets;

                (D) 105 brick penetrations for terrace external lights/lamps;

                (E) 210 brick penetrations to anchor terrace railings/fences into bricks;

                (F) 2,880 brick penetrations for windows;

                (G) 735 coping stone penetrations by the vertical stanchions of terrace and roof

railings/fences; and

                (H) 36 other facade penetrations in the brick and /or limestone exterior of the

building for external lights/lamps, water faucets, vents and other things.

        16.     Plaintiff's Existing Conditions were approved and covered in the Existing

Approvals contained in the corporate defendant’s board minutes and in (a) the Existing

Alteration Agreement, (b) a January 1992 approval letter from the corporate defendant regarding

the dryer vent (“Dryer Vent Inspection Letter”), (c) the corporate defendant’s architect’s July 12,

1990 letter to the Managing Agent, and (d) the December 1995 letter exchange in which the

Managing Agent approved plaintiff's stove vent, all of which are the kind of written consents

contemplated in and obtained by plaintiff pursuant to Lease §20.

        17.     On August 21, 2009, plaintiff and her husband met with the corporate defendant’s

engineer and Building superintendent at about the time the corporate defendant was embarking

on various Building projects.   One of the purposes of that meeting was to discuss whether

plaintiff needed to remove the condenser to the split unit air conditioner and reinstall as plaintiff

had done in the past when brick work was done.        Also at that meeting, defendant’s engineer and

Building superintendent expressly confirmed to plaintiff that (a) if plaintiff wished to replace her

through the window and through the bricks air conditioners in her 12R laundry room, 12R
                                                  8
bedroom, and second 12T bedroom, she could do so and replace them with split unit air

 conditioners where the condenser would be placed on the terrace and connect through a small

 hole in the bricks to the interior part of the air conditioner, and (b) the window unit in the 12R

 laundry room was permitted as were the other Existing Conditions because none of them was

 visible from the street.

         18.      New Alteration Agreement §10(h)(3) provides: “The Corporation, in its sole

discretion, has the absolute and unfettered right to require the Shareholder to remove and/or to

replace, at the Shareholder’s sole expense, any and all installations and alterations made by the

Shareholder, including, but not limited to, windows, terrace doors, built-ins, cabinetry, window

air conditions,   through-the- wall air conditioners, washing machines and dryers, ventilators, and

floor and wall coverings.”

         19.      {10(h)(3) varies, amends, modifies, abrogates and changes, and thus also violates

Lease {6 and 20, the Existing Alteration Agreement, the Existing Approvals and the Dryer Vent

Inspection Letter.

        20.       The Existing Alteration Agreement does not contain any provision remotely close

to §10(h)(3) of the New Alteration Agreement and actually provides the opposite. 48 of the

Existing Alteration Agreement states that: “The Cooperator shall assume all responsibility for

the Alterations [and] .. . all responsibility for the weather-tightness of any installation affecting

exterior walls or roofs and the waterproofing of any portion of the Building structure directly or

indirectly affected by the Alterations and for the maintenance and performance of all. . .

plumbing, air conditioning and other equipment installed, or altered, by the Cooperator, during

the balance of their lease term.” (Emphasis added)      8 of the Existing Alteration Agreement is

consistent with Lease 20 while {10(h)(3) of the form of New Alteration Agreement is not.
21.    In requiring plaintiff
                                     to sign a New Alteration Agreement as a condition to

 allowing plaintiff to install a new washer and dryer (albeit not a gas dryer), defendants are

 abrogating {8 of the Existing Alteration Agreement and the Existing Approvals and requiring

plaintiff
        to agree to §10(h)(3) of the New Alteration Agreement.       Upon information and belief,

defendants’ purpose in requiring that is to essentially (a) force plaintiff
                                                                          to agree that

notwithstanding the Existing Approvals, defendants can revoke those Existing Approvals at any

time with or without any reason and against plaintiff's will, and (b) require plaintiff to agree or

acquiesce in a variation to Lease {6 and 20. No variation to Lease {20 can be made without

plaintiff's consent and without the consent of the holders of at least 2/3 of all of the corporate

defendant’s outstanding shares as is required under Lease §6. The New Alteration Agreement

combined with 2010 and 2012 House Rules #4, 77 and 100 are defendants’ attempts to vary the

Lease without plaintiff's consent in violation of Lease 6.

        22.     Plaintiff's obligation to remove any of the Existing Conditions is in Existing

Alteration Agreement §/14 which is consistent with Lease 20, and requires the removal of the

Existing Conditions if they “might interfere at any time with any mechanical managements or

repairs that might be necessary to the building (such as to locate leaks, remove and install pipes

and otherwise correct deficiencies or make repairs of any kind).” The Fabricated Brick Rule is

not encompassed within this 414.    Accordingly, {10(h)(3) of the New Alteration Agreement is

intended by defendants to require plaintiff to in essence agree to amend or terminate Existing

Alteration Agreement 14 in addition to varying the Lease.

        23.    2010/2012 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,” i.e. the New Alteration Agreement.    §10(j) of the New Alteration
                                                  10
Agreement provides: “Through-the-wall air conditioners are the ONLY units [of air conditioner]

 permitted.”

         24,    Page 3 of the corporate defendant’s September 10, 1968 Offering Statement filed

with the New York State Attorney General (“AG”) states: “Certain apartments contain window

airconditioning units variously installed by the tenants and by the Sponsor.”     Page 4   states that

“such units may not be removed from the premises ....       Airconditioning units owned by the

tenants will remain their property and may be removed by them.”

        25.     Lease {16 provides: “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)

        26.     In violation of their duties to the corporate defendant and to the shareholders,

including plaintiff, upon information and belief, the defendants:

         (a)    Fabricated and are enforcing against plaintiff the Fabricated Failsafe Rule which

as a non-existent rule cannot be enforced.   Lease §16 does not permit the defendants to fabricate

rules that regulate shareholder conduct, and only allows the individual defendants acting as a

board, and not individually, to adopt House Rules that comply with Lease 16.

        (b)     Made false and misleading statements to the Court and plaintiff that (i) the

Fabricated Failsafe Rule exists when it does not, (ii) the Fabricated Failsafe Rule has been

adopted by the board of directors when it has not, and (iii) a business or other legitimate purpose

is served by them adopting and enforcing the Fabricated Failsafe Rule when no such business or

legitimate purpose exists in adopting and enforcing a rule that does not exist, particularly when

plaintiff has for 23 years had a water shut-off valve installed for her washer.

        (c)    Prohibited plaintiff from installing the washer and gas dryer she wishes to install

to replace her Existing Washer and Gas Dryer by relying on the Fabricated Brick Rule that as
                                                  ll
applied to plaintiff violates Lease 420 and the Existing Approvals, and is neither reasonable nor

 necessary for the management and control of the building as is required under Lease{16 because

 (i) the Existing Dryer Vent has existed in harmony with the bricks on plaintiff's terrace for more

than 23 years without harming anyone, (ii) 2010 and 2012 House Rules #78 and #79 actually

mandate an increase in brick penetrations, and (iii) there are at least 4,176 existing brick and

other fagade penetrations in the Building.

         (d)    Adopted and are enforcing against plaintiff defendants’ 2010 House Rules and/or

2012 House Rules #4, #77 and #100, and the Fabricated Rules, that appear to have been adopted

and are being enforced against plaintiff for a discriminatory purpose, for no business or other

legitimate purpose, and in retribution for plaintiff's husband, along with other shareholders

expressing concerns in 2009-2011 about many of the Building projects undertaken by the

defendants, especially Nardone.

        (e)    Adopted and are enforcing against plaintiff the Fabricated Rules, and are

requiring plaintiff to sign a New Alteration Agreement, inclusive of {10(h)(3) therein, which is a

contract of adhesion, each of which varies, violates and abrogates Lease 16, 16 and 20, the

Existing Approvals and Existing Alteration Agreement $98 and 14, and infringes on plaintiff's

contract and property rights under the Lease, Alteration Agreement and Dryer Vent Inspection

Letter (collectively, “Contracts”.

        (f)    Adopted and are enforcing against plaintiff the Fabricated Brick Rule and at the

same time are intentionally ignoring and not giving any effect to the existing and unique physical

conditions in 12R/T, which physical conditions (i) were implicitly recognized by the corporate

defendant’s Existing Approvals of the Existing Conditions, (ii) were features in 12R/T that along

with the Existing Approvals were material inducements to plaintiff and her husband to buy 12R

in the first place and to combine 12R with 12T, and (iii) were expressly acknowledged by the
                                                 12
corporate defendant’s engineer and Building superintendent at their meeting with plaintiff and

her husband on August 21, 2009.

          @®     Have exceeded their authority under Lease (6, 16 and 20 by adopting and

enforcing against plaintiff both 2010 and 2012 House Rule #4 (the Fabricated Brick Rule) and by

fabricating a non-existent rule (the Fabricated Failsafe Rule), and in doing (i) are requiring

plaintiff to execute a New Alteration Agreement which mandates removal of Existing Conditions

that are the subject of the Existing Approvals and (ii) are unilaterally varying, breaching,

modifying, amending, abrogating and changing the terms of the Lease and other Contracts that

are still in full force and effect and binding on the corporate defendant and plaintiff, all without

plaintiffs consent.

          27.    Defendants’ reasoning for the Fabricated Brick Rule and for requiring plaintiff to

sign a New Alteration Agreement would also apply to all the other Existing Conditions when the

appliances or devices they involve break or when plaintiff chooses to sell 12R/T notwithstanding

that Existing Alteration Agreement 48 runs “for the balance of their [plaintiff's] lease term.”

Other than the balance of the Lease term, there is no time limit or expiration for the Existing

Approvals sought and given pursuant to Lease §20, nor is any time limit or expiration date

articulated in Lease §20. The intent of Lease §20 was and remains to allow a shareholder-lessee

to quietly enjoy their apartments and their approved alterations free of interference from

defendants once the corporate defendant has given its consent.

         28.     The Existing Approvals were given by the corporate defendant pursuant to Lease

20.     The New York City Department of Buildings (“DOB”) issued its building permit and

Landmarks Preservation Commission (“LPC”) issued its “Certificate of No Effect” to plaintiff in

1990.    The DOB issued Certificate of Occupancy No. 102130 on or about February 5, 1993.



                                                  13
29.        The physical configuration of plaintiff's 12R kitchen (now plaintiff's laundry

room), living and dining rooms in 12R/T, and 12T kitchen do not allow for installation ofa

 Stanley Ruth-type through the bricks air conditioner that connects to a Building radiator because

there is no physical room between the apartment floor and the bottom of the window to install

the same.         This was acknowledged by the corporate defendant in giving plaintiff the Existing

Approvals in 1990 and again when the corporate defendant’s engineer and Building

superintendent met with plaintiff and her husband on August 21, 2009.

        30.           Upon information and belief, defendants’ 2010 and 2012 House Rules #4

requiring installation, whether de novo or replacement, of a self-venting dryer was intended at

the time those 2010 and 2012 House Rules were adopted, to apply to de novo installations of

dryers where there was no already existing dryer vent, and to replacement of dryers only as part

of a “gut” renovation of an apartment, not to a replacement of an existing gas dryer with another

gas dryer.        No de novo installation or gut renovation applies to plaintiff at this time regardless of

whether either or both of those purposes for the self-venting dryer rule were reasonable and

necessary for the management and control of the building.

        31.           Upon information and belief defendants have concocted the Fabricated Brick Rule

and have applied it to plaintiff, who has an Existing Dryer Vent (and the other Existing

Conditions that are approved brick penetrations), to target and punish plaintiff, not only because

plaintiff was among the shareholders who have questioned the individual defendants, especially

Nardone, but also because defendants are applying these rules to plaintiff who at most is one of

not more than about 8 shareholders who have combined two or more apartments in the Brevoort

where there is a terrace and a second source of gas to fuel a gas clothes dryer that can vent out to

a terrace and not be visible from the street, out of a total of about 288 original apartments in the

Brevoort.         Defendants’ actions in adopting the Fabricated Brick Rule are thus targeted at about
                                                        14
less than 3% of all shareholders who could have a gas dryer connected to a second source of gas

 that could vent out onto a terrace, and defendants knew plaintiff was one of those shareholders.

 That makes defendants’ actions and inactions inappropriate, unreasonable, arbitrary, punitive,

 capricious, intentional, malicious and vindictive, a breach of the individual defendants’ fiduciary

 duties to, and duty of care and duty to act in good faith and fair dealing with, the corporate

 defendant and its shareholders, including plaintiff, which actions serve no business or other

 legitimate purpose, are in bad faith, a waste of the corporate defendant’s assets, and are

 discriminatory against plaintiff (collectively, “Defendants? Fiduciary Breaches”).

           32.   Most of plaintiff's claims against the individual defendants are derivative through

 the corporate defendant and are asserted pursuant to New York Business Corporation Law

 (“BCL”) §626.    The fair value of plaintiff's shares in the corporation exceeds $50,000 and,

accordingly, no security is required pursuant to BCL §627.

           33.   All out-of-pocket costs for legal fees and expenses, insurance deductibles, Court

costs, damages to plaintiff, or other costs, should not be borne by all shareholders through their

ownership of shares in and payment of maintenance under Leases to the corporate defendant.

Those costs should be borne by and reimbursed to the corporate defendant by the individual

defendants who in taking the actions constituting Defendants’ Fiduciary Breaches have

fabricated and are enforcing the Fabricated Rules in a discriminatory manner against plaintiff

without a business or other legitimate purpose, are causing the corporate defendant to waste and

dissipate its assets in connection therewith, are attempting thereby to vary the Lease, and are

exceeding their authority under the Lease, including 46, 16, 19 and 20. The individual

defendants must be accountable to the corporate defendant and all its shareholders for their

actions.



                                                  15
34,     The individual defendants have made representations to the shareholders about

 how (a) their budgeting for increases in real estate taxes, staff costs, Building maintenance and

 capital expenditures would be met by the corporate defendant's appropriation from shareholders

 of their New York STAR rebates for real estate taxes and by a recently instituted flip tax on re-

 sales of apartments, (b) gym membership fees would cover the costs of creating and maintaining

 the recently created gym in the Building, and (c) their creation of an electric cogeneration facility

 that was recently installed in the basement of the Building, runs on gas, and the removal of the

 Building’s oil burning furnaces, would result in lower Building operating costs and in lower

costs to shareholders for electricity to their separately metered apartments.

        35.     Upon information and belief, none of those representations has proven to be true

because of the extraordinary assessments and maintenance increases the individual defendants

have imposed on shareholders, including a 3% maintenance increase imposed this month.

Accordingly, Defendants’ Fiduciary Breaches include causing the corporate defendant to incur

costs and to waste and dissipate corporate assets by denying plaintiff's request to replace her

Existing Washer and Gas Dryer utilizing her Existing Dryer Vent under the Existing Approvals

for the Existing Conditions, and to have thereby forced plaintiff
                                                                to commence this lawsuit.

        36.     Upon information and belief, few shareholders have been willing to speak out and

question anything the individual defendants do in the Building, particularly Nardone, out of fear

that the individual defendants, especially Nardone, as is the case here, will take inappropriate,

arbitrary, unreasonable, capricious, intentional, malicious and vindictive actions against them

and thereby commit further Defendants’ Fiduciary Breaches, such as (a) by giving them or their

prospective purchasers a difficult time or by rejecting their proposed purchasers when they seek

to sell their apartments, or (b) by rejecting any requests for an alteration in their apartments



                                                  16
whether or not any such request actually involves an alteration and is reasonable or is even

 needed due to an existing consent such as the Existing Approvals here.

           37.     Plaintiff has not made any demand on the corporate defendant to assert any claim

against the individual defendants because demand would have been futile and a useless act

because (a) the individual defendants control the corporate defendant and (b) Nardone’s

February 4, 2014 email to plaintiff's husband states that the individual defendants acting as a

board have made the determinations complained of herein, including without limitation adopting

and implementing the Fabricated Rules against plaintiff.

           38.     Plaintiff does not know which, if any, of the individual defendants voted or did

not vote for, consented or did not consent to, acquiesced or did not acquiesce in, or approved or

did not approve, upon information and belief, (a) Nardone’s fabrication of either or both of the

Fabricated Rules, (b) the adoption of the relevant 2010 and/or 2012 House Rules, or (c)

defendant’s enforcement against plaintiff of the Fabricated Rules in the circumstances of plaintiff

desiring and needing to replace her Existing Washer and Gas Dryer and maintain her Existing

Dryer Vent.      Plaintiff also does not know if other shareholders were members of the corporate

defendant’s board of directors when the 2010 House Rules and the 2012 House Rules were

adopted.

           39.    Accordingly, upon information and belief: (a) The interests of the individual

defendants are or may be different and adverse to the interests of the corporate defendant; (b)

The interests of the individual defendants are or may be different and adverse to the interests of

Nardone; (c) The interests of the corporate defendant are different and adverse to the interests of

Nardone; (d) The interests of certain of the individual defendants who are not members of the

corporate defendant’s alterations committee are or may be different and adverse to the interests

of certain others of the individual defendants who are not members of the defendant’s alterations
                                                    17
committee;   (e) The interests of certain of the individual defendants who are not members of the

 corporate defendant’s legal committee are or may be different and adverse to the interests of

 certain others of the individual defendants who are members of the defendant’s legal committee:

 (f) The interests of certain of the individual defendants are or may be adverse to the interests of

 certain of others of the individual defendants; and (g) The interests of those persons not named as

 individual defendants herein but who may have been members of the corporate defendant’s

 board of directors when the 2010 House Rules and/or the 2012 House Rules were approved are

or may be different and adverse to the interests of one or more of the defendants or others who

served on the corporate defendant’s board of directors at those times.

        40.     The corporate defendant existed as a cooperative housing corporation for about 42

years without (a) any brands of appliances having ever been specified in any House Rules until

defendants adopted the 2010 and 2012 House Rules and (b) the Fabricated Rules. The Existing

Conditions have existed under the Existing Approvals for more than 23 years.

        41.     What changed to cause defendants to adopt the 2010 and 2012 House Rules and

the New Alteration Agreement implicated here when they did, and in so doing limit the brands of

appliances and adopt the Fabricated Rules, and to enforce those changes and fabricated Rules

against plaintiff? What changed was that, upon information and belief, Nardone and the other

individual defendants were challenged in 2009-2011 by many shareholders for board seats and

were questioned, including by plaintiff's husband, as to (a) their actions that increased the

corporate defendant’s debt from about $3 million to more than $11 million, and (b) their

discretionary capital projects that resulted in defendants imposing many significant assessments

and increases in maintenance on shareholders.    Upon information and belief, none of the

individual defendants, especially Nardone, countenances any questioning of what they do in the

Brevoort, and have made certain of the changes in the 2010 and 2012 House Rules and form of
                                                  18
New Alteration Agreement that are in issue in this Action to affect shareholders who questioned

 them as is the case here.

         42.     All 2010 and 2012 House Rules and purported House Rules, including the form of

New Alteration Agreement and the Fabricated Rules, as applied to plaintiff regarding the

Existing Conditions should have been but were not adopted and are not being applied by

defendants (a) for a legitimate business purpose, (b) in compliance with Lease {96 and 16 in that

those House Rules must have been but were not both “reasonable” and “necessary for the

management and control of the building,” (c) in good faith and fair dealing, (d) in the exercise of

and consistent with their fiduciary duties, duties of good faith, fair dealing and care to the

corporate defendant and the shareholders, and (e) with the consent of plaintiff and the holders of

at least 2/3 of the shares outstanding.   The 2010 and 2012 House Rules could not have been so

adopted and applied by the defendants against plaintiff absent Defendants’ Fiduciary Breaches

and their belief that one or more of them can unilaterally vary, amend, modify, change or

abrogate plaintiffs Contracts.

                   PARTIES; RPAPL §1515 PLEADINGS; ADDITIONAL FACTS

        43.     Plaintiff repeats and realleges each and every allegation in paragraphs | through

42 above with the same force and effect as if set forth at length herein.

        44,     Different forms of relief are sought in this action, including that this is an action

to determine a claim to real property that is commenced pursuant to New York Real Property

Actions and Proceedings Law Article 15, and specifically §1515 (*“RPAPL §1515”) (“Nothing

contained in this article shall be construed to limit any other remedy in law or equity.”) and

alternatively under the CPLR including Articles 63 and 78, for the declaratory, injunctive and

money damage claims set forth in this Complaint.



                                                   19
45.    Plaintiff resides in the City and State of New York in a combined apartment with

 combined private terraces, 12R and 12T (the “Premises”) in the corporate defendant’s

 cooperative apartment building at 11 Fifth Avenue, New York, New York 10003-4342, Block

 566, Lot 1, New York County, having New York City DOB Certificate of Occupancy #102130

 dated February 5, 1993 (the “Certificate of Occupancy”).       Helen resides in the Premises with her

 husband, Stephen I. Siller (“Stephen”) pursuant to two Leases, the duration of which is as long as

 plaintiff (or her estate) owns shares of common stock in defendant or, if later, until September

 30, 2075 (or later if all Leases are extended).   Those two Leases are identical except as to the

apartment they identify.    Effective April 18, 2001, Stephen transferred his interest in the shares

and Leases to Helen who is the sole owner of the shares and Leases attributable to the Premises.

Plaintiff is not in default of any of her obligations to the corporate defendant.

        46.     Plaintiff is and was a shareholder of the corporate defendant at all relevant times

in 2010 through now, when the defendants adopted the 2010 and 2012 House Rules and form of

New Alteration Agreement, and when defendants denied plaintiff the right to replace her

Existing Washer and Gas Dryer unless plaintiff complied with the Fabricated Rules and signed a

New Alteration Agreement.

        47.     The derivative claims in this Complaint are in no way collusive to confer

jurisdiction on this Court which this Court would otherwise lack. The claims against the

individual defendants are also intended to preclude them from causing the corporate defendant to

enforce the Fabricated Rules.

        48.     Plaintiff's estate or interest in the real property, the particular nature of such estate

or interest, and the source from or means by which the plaintiff's estate or interest immediately

accrued to her is set forth in Complaint 945. Plaintiff's estate or interest therein is for a term of

years, and the balance remaining of such term of years is not less than five.
                                                   20
49.      The relief plaintiff seeks in this Complaint is not being sought by plaintiff
                                                                                              in any

 other action or proceeding.

         50.      Defendants’ Fabricated Brick Rule is a claim or might be a claim to an estate or

 interest in the real property that comprises the Premises and is adverse to that of plaintiff, and the

 particular nature of such estate or interest is as set forth in this Complaint.

         Sl.      The corporate defendant is a corporation incorporated on or about March 29, 1968

 under the laws of the State of New York, and is a cooperative housing corporation and is or is

 intended to be such under the United States Internal Revenue Code and the laws of the State of

New York.      At all times relevant to this action the corporate defendant has owned the Building in

fee simple.    Defendant leases apartment units in the Building to its shareholders, including

plaintiff, pursuant to proprietary leases in the same form as the Lease.     The corporate defendant

owned, operated, managed, and/or controlled, directed or supervised the management of the

Building at all times relevant to this action. As a cooperative housing corporation, the corporate

defendant is not known to be an infant, mentally retarded, mentally ill or an alcohol abuser.

        52.      The individual defendants, upon information and belief, all have their primary

residences in the Brevoort in Manhattan, and all of them are directors and some of them are

officers of the corporate defendant and members of various board committees.         Plaintiff

possesses no information to cause plaintiff to conclude that any of the individual defendants is an

infant, mentally retarded, mentally ill or an alcohol abuser.

        53.      Venue is proper in this Court because all parties are citizens or residents or have

their principal place of business in New York County,      New York, and the Building is real estate

located in New York County, New York.

       54.       Because this action involves the Building and the Contracts, the judgment in this

action will not affect a person or persons not in being or ascertained at the commencement of this
                                                   21
action, who by any contingency contained in a devise or grant or otherwise, could afterward

 become entitled to a beneficial estate or interest in the property involved; and every person in

 being who would have been entitled to such estate or interest if such event had happened

 immediately before the commencement of this action is named as a party to this action.

         55.     Plaintiff believes that (a) the corporate defendant’s mortgagee(s) are not necessary

 parties at this time but, if this Court determines that they are, plaintiff will add them as parties’

 defendant and serve them with a copy of this Complaint, and (b) none of the individual

 defendants’ mortgagee(s), and none of any other shareholder’s mortgagee(s), is a necessary party

at this time.

         56.    Plaintiff believes that one or more other shareholders might be affected by the

judgment in this action, particularly if they (a) are parties to an “alteration agreement” similar to

the Existing Alteration Agreement that pre-da