Preview
INDEX NO. 151313/2014
(FILED: NEW YORK COUNTY CLERK 0871172015 05:01 PM
NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 08/11/2015
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION: FIRST DEPARTMENT
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HELEN SILLER,
Plaintiff-Appellant,
-against- Index No. 151313/2014
THE THIRD BREVOORT CORPORATION,
DIANE C. NARDONE, CLIFF RUSSO,
ELIZABETH LOUIE, ANDREW BAUM, PRE-ARGUMENT STATEMENT
GEORGE ALOI, CHRISTINE BECK, BONNIE
HILLER, MORTIMOR C. LAZARUS, JANE
WARREN, JOHN C. WOELL and
BARBARA EISENBERG,
Defendants-Respondents.
wane nnn n nnn nen nee e ene: X
Pursuant to rule 600.17, plaintiff-appellant Helen Siller states as follows:
1 Title of the Action: The title of the action is as set forth above.
2 Original Parties: Helen Siller and The Third Brevoort Corporation were the
original parties to this action. In connection with the first amended complaint, the additional
defendants set forth in the caption were added. Thereafter, all defendants except The Third
Brevoort Corporation and Diane C. Nardone were voluntarily dismissed from the action.
3 Counsel for plaintiff-appellant: Daniel S. Steinberg, Esq., The Law Offices of
Daniel S. Steinberg P.C., 355 Lexington Avenue, Suite 401, New York, NY 10017, (212) 666-
3316; Stephen I. Siller, Esq., 885 Third Avenue, 16th Floor, New York, NY 10022, (212) 981-
2330.
4 Counsel for defendants-respondents: Barry G. Margolis, Esq., Abrams Garfinkel
Margolis Bergson, LLP, 1430 Broadway, 17th Floor, New York, NY 10018, (212) 201-1170.
5 Court from Which Appeal is Taken: This appeal is from the Order of the
Supreme Court, New York County (Shlomo Hagler, J.) dated July 14, 2015 and entered on July
15, 2015.
6 Nature and Object of Action: The plaintiff is a tenant-shareholder in a
cooperative apartment corporation. She commenced this action to enforce her contractual rights
after defendants arbitrarily failed and refused to permit her replacement of approved but older
and malfunctioning laundry machines. Plaintiff merely sought to unplug the old machines and
plug in new ones. Under her proprietary lease and alteration agreement, plaintiff has the right to
do so. Notwithstanding plaintiffs contract rights, defendants refused to approve the requested
replacement of the machines and are compelling plaintiff to undertake a costly and contractually
unnecessary alteration of the plaintiff's laundry/utility room to accommodate machines of
different dimensions and power sources. Plaintiff seeks injunctive relief and damages against the
apartment corporation for breach of the provisions of the proprietary lease and alteration
agreement. Plaintiff also seeks to enjoin the application to her of certain house rules adopted by
the apartment corporation after the date of her alteration agreement and proprietary lease which
are in contravention of those agreements. These house rules limit replacement machines to three
brands, none of which manufactures equipment to fit the footprint of plaintiff's existing
equipment. Plaintiff also seeks damages from the apartment corporation’s president based on
significant evidence that the president wrongfully blocked the replacement of the laundry
machines in order to compel a costly renovation for the benefit of the apartment corporation’s
engineer and contractor with whom the president has a longstanding personal and financial
relationship.
7 Result Reached by the Court Below: The court below dismissed the entire second
amended complaint pursuant to CPLR 3211(a)(1) and (7).
8 Grounds for Reversal:
a. The court erred by not accepting as true the plaintiffs allegations in her
complaint and by not ordering discovery, and thereby on no factual record dismissing plaintiffs
entire complaint that consisted of seven causes of action. Plaintiff's causes of action involved
questions of fact, including allegations of significant wrongdoing on the part of the defendant
apartment corporation and its president.
b. The court erred in holding that, under the guise of the business judgment
rule, defendants were excused from having to abide by the plain meaning of the terms of the
proprietary lease and an alteration agreement made with plaintiff in 1990. Based on the contracts
and the relevant case law, the court could have and should have granted plaintiff summary
judgment to plaintiff on her claim for breach of contract and an injunction.
¢. The court erred in deeming the business judgment rule applicable in
circumstances where (1) plaintiff's contractual rights cannot legally be trumped by after-adopted
house rules, and (2) the court ignored the self-dealing and personal gain plaintiff alleged against
the apartment corporation and its president which clearly involve questions of fact and required
discovery, not dismissal.
d The court erred in approving defendants’ adoption and application of post-
contract house rules where the effect of those house rules was to nullify defendants’ contractual
obligations to plaintiff.
e The court erred in ignoring allegations that the application to plaintiff
of
later-adopted house rules was in retaliation against plaintiff who had challenged the actions of
the apartment corporation’s president.
f. The court erred by dismissing without any fact discovery plaintiff's claim
against the apartment corporation’s president for tortious interference with plaintiff's contracts
where plaintiff made specific allegations and presented specific documents demonstrating that
the president’s refusal to allow the replacement of the laundry machines with comparable
equipment was motivated by the president’s self-interest and personal financial gain.
g The court erred with respect to the requirement in the proprietary lease
that house rules must be “reasonable” where a new house rule mandates self-venting electric
dryers which exhaust heat inside the laundry room, thereby requiring greater air-conditioning
and electric use, even where, as in plaintiff's case, there exists a significantly more efficient and
previously approved through the wall exhaust vent to which a new gas dryer can merely be
connected without any alterations to the apartment’s electric service, bricks, cabinetry, plumbing
or interior.
h The court erred in failing properly to account for a false affirmation by the
apartment corporation’s president.
i It was error for the court to have dismissed plaintiffs claim under RPAPL
§1515 on the basis that the court found no cases interpreting that section notwithstanding that the
facts alleged by plaintiff fall within the plain language of that statute.
9. There are no related actions or proceedings now pending in any court of this or
any other jurisdiction.
Dated: New York, New York
August 11, 2015
The Law Offices of
DANIEL S. STEINBERG P.C.
~
By:_*
Daniel S. Ste erg
355 Lexington Avenue, Suite 401
New York, NY 10017
(212) 666-3316
STEPHEN I. SILLER, ESQ.
885 Third Avenue, 16th Floor
New York, NY 10022
(212) 981-2330
Attorneys for Plaintiff-Appellant
Helen Siller
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
mene n cnet ne ene n ene e nee ee enn en nee nen en ene n ne ne nee,
HELEN SILLER,
Plaintiff,
-against- Index No. 151313/2014
THE THIRD BREVOORT CORPORATION,
DIANE C. NARDONE, CLIFF RUSSO,
ELIZABETH LOUIE, ANDREW BAUM, NOTICE OF APPEAL
GEORGE ALOI, CHRISTINE BECK, BONNIE
HILLER, MORTIMOR C. LAZARUS, JANE
WARREN, JOHN C. WOELL and
BARBARA EISENBERG,
Defendants.
X
PLEASE TAKE NOTICE that, plaintiff Helen Siller hereby appeals to the Appellate
Division of the Supreme Court of the State of New York, First Department, from the Order of the
Supreme Court, New York County (Shlomo Hagler, J.), dated July 14, 2015 and entered on July 15, 2015
Dated: New York, New York
August 11, 2015
The Law Offices of
DANIEL S. STEINBERG P.C.
By
Daniel S. Steinba
355 Lexington Avenue, Suite 401
New York, NY 10017
(212) 666-3316
STEPHEN I. SILLER, ESQ.
885 Third Avenue, 16th Floor
New York, NY 10022
(212) 981-2330
Attorneys for Plaintiff Helen Siller
INDEX NO. 151313/2014
(FILED: NEW YORK COUNTY CLERK 07/15/2015 11:34 AM
NESCEF oc. NO. 123 RECEIVED NYSCEF: 07/15/ 2015
= 4 +
~
At Part 17 of the Supreme Court of
the State of New York, held in and
for the County of New York, at the
Courthouse thereof located at 60
Centre Street, New, York, New York
onthe /{_ day of duly, 2015
PRESENT:
HON. SHLOMO HAGLER
JSC.
eeecceeenen ene nenn een e eee e ee neem enn nnn nee nanannmnnnenannnee
ens
HELEN SILLER,
Plaintiff,
-against-
THE THIRD BREVOORT CORPORATION, Index No. 151313/2014
DIANE C. NARDONE, CLIFF RUSSO,
ELIZABETH LOUIE, ANDREW BAUM, ORDER
GEORGE ALOI, CHRISTINE BECK, BONNIE
HILLER, MORTIMOR C. LAZARUS, JANE
WARREN, JOHN C. WOELL, AND BARBARA
EISENBERG,
Defendants.
meee ecenneenene enn ceenennn ene nnn enn nnecenennnnnnennnnrnenanmemmnnnX,
Defendants having moved this Court for an Order, pursuant to CPLR 3211(a)(1) and
321 1(a)(7), dismissing plaintiff's Second Amended Verified Complaint, dated October 21, 2014,
with prejudice and for such other, further and different relief as the Court deems just and proper;
NOW, upon reading and filing the Affirmation of Barry G. Margolis, dated November
26, 2014, in Support of Motion to Dismiss the Second Amended Verified Complaint, together
with the exhibits annexed thereto and the accompanying memorandum of law, the affirmation of
Daniel S. Steinberg, dated January 7, 2015, in Opposition to Defendants’ Motion to Dismiss the
Second Amended Complaint, the accompanying affidavit of Helen Siller, swom to May 7, 2014,
te + a :
together with the exhibits annexed thereto and the accompanying memorandum of law, the Reply
Affirmation of Barry G. Margolis, dated January 26, 2015, in Further Support of Motion to
Dismiss the Second Amended Verified Complaint, together with the exhibit annexed thereto, and
the accompanying reply memorandum of law,
AND upon the oral argument on the record on May 12, 2015 and June 15, 2015, and the
transcripts memorializing said arguments, which are incorporated herein and made a part hereof,
AND plaintiff during oral argument having discontinued her Eighth Cause of Action
without prejudice;
AND the Court, after due deliberation, having issuedan Order dated and entered June 15,
2015 directing that an order be settled;
“NOW, THEREFORE, it is:
ORDERED, that defendants’ motion to dismiss plaintiff's Second Amended Verified
Complaint dated October 21, 2014 is granted in all respects, and the Second Amended Verified
Complaint is hereby dismissed with prejudice.
SHLOMO. HAGLER
J.S.C.
Tithe
Preview
INDEX NO. 151313/2014 (FILED: NEW YORK COUNTY CLERK 0871172015 05:01 PM NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 08/11/2015 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT macnn nee nee eee ene ee een een eee een nne ne, HELEN SILLER, Plaintiff-Appellant, -against- Index No. 151313/2014 THE THIRD BREVOORT CORPORATION, DIANE C. NARDONE, CLIFF RUSSO, ELIZABETH LOUIE, ANDREW BAUM, PRE-ARGUMENT STATEMENT GEORGE ALOI, CHRISTINE BECK, BONNIE HILLER, MORTIMOR C. LAZARUS, JANE WARREN, JOHN C. WOELL and BARBARA EISENBERG, Defendants-Respondents. wane nnn n nnn nen nee e ene: X Pursuant to rule 600.17, plaintiff-appellant Helen Siller states as follows: 1 Title of the Action: The title of the action is as set forth above. 2 Original Parties: Helen Siller and The Third Brevoort Corporation were the original parties to this action. In connection with the first amended complaint, the additional defendants set forth in the caption were added. Thereafter, all defendants except The Third Brevoort Corporation and Diane C. Nardone were voluntarily dismissed from the action. 3 Counsel for plaintiff-appellant: Daniel S. Steinberg, Esq., The Law Offices of Daniel S. Steinberg P.C., 355 Lexington Avenue, Suite 401, New York, NY 10017, (212) 666- 3316; Stephen I. Siller, Esq., 885 Third Avenue, 16th Floor, New York, NY 10022, (212) 981- 2330. 4 Counsel for defendants-respondents: Barry G. Margolis, Esq., Abrams Garfinkel Margolis Bergson, LLP, 1430 Broadway, 17th Floor, New York, NY 10018, (212) 201-1170. 5 Court from Which Appeal is Taken: This appeal is from the Order of the Supreme Court, New York County (Shlomo Hagler, J.) dated July 14, 2015 and entered on July 15, 2015. 6 Nature and Object of Action: The plaintiff is a tenant-shareholder in a cooperative apartment corporation. She commenced this action to enforce her contractual rights after defendants arbitrarily failed and refused to permit her replacement of approved but older and malfunctioning laundry machines. Plaintiff merely sought to unplug the old machines and plug in new ones. Under her proprietary lease and alteration agreement, plaintiff has the right to do so. Notwithstanding plaintiffs contract rights, defendants refused to approve the requested replacement of the machines and are compelling plaintiff to undertake a costly and contractually unnecessary alteration of the plaintiff's laundry/utility room to accommodate machines of different dimensions and power sources. Plaintiff seeks injunctive relief and damages against the apartment corporation for breach of the provisions of the proprietary lease and alteration agreement. Plaintiff also seeks to enjoin the application to her of certain house rules adopted by the apartment corporation after the date of her alteration agreement and proprietary lease which are in contravention of those agreements. These house rules limit replacement machines to three brands, none of which manufactures equipment to fit the footprint of plaintiff's existing equipment. Plaintiff also seeks damages from the apartment corporation’s president based on significant evidence that the president wrongfully blocked the replacement of the laundry machines in order to compel a costly renovation for the benefit of the apartment corporation’s engineer and contractor with whom the president has a longstanding personal and financial relationship. 7 Result Reached by the Court Below: The court below dismissed the entire second amended complaint pursuant to CPLR 3211(a)(1) and (7). 8 Grounds for Reversal: a. The court erred by not accepting as true the plaintiffs allegations in her complaint and by not ordering discovery, and thereby on no factual record dismissing plaintiffs entire complaint that consisted of seven causes of action. Plaintiff's causes of action involved questions of fact, including allegations of significant wrongdoing on the part of the defendant apartment corporation and its president. b. The court erred in holding that, under the guise of the business judgment rule, defendants were excused from having to abide by the plain meaning of the terms of the proprietary lease and an alteration agreement made with plaintiff in 1990. Based on the contracts and the relevant case law, the court could have and should have granted plaintiff summary judgment to plaintiff on her claim for breach of contract and an injunction. ¢. The court erred in deeming the business judgment rule applicable in circumstances where (1) plaintiff's contractual rights cannot legally be trumped by after-adopted house rules, and (2) the court ignored the self-dealing and personal gain plaintiff alleged against the apartment corporation and its president which clearly involve questions of fact and required discovery, not dismissal. d The court erred in approving defendants’ adoption and application of post- contract house rules where the effect of those house rules was to nullify defendants’ contractual obligations to plaintiff. e The court erred in ignoring allegations that the application to plaintiff of later-adopted house rules was in retaliation against plaintiff who had challenged the actions of the apartment corporation’s president. f. The court erred by dismissing without any fact discovery plaintiff's claim against the apartment corporation’s president for tortious interference with plaintiff's contracts where plaintiff made specific allegations and presented specific documents demonstrating that the president’s refusal to allow the replacement of the laundry machines with comparable equipment was motivated by the president’s self-interest and personal financial gain. g The court erred with respect to the requirement in the proprietary lease that house rules must be “reasonable” where a new house rule mandates self-venting electric dryers which exhaust heat inside the laundry room, thereby requiring greater air-conditioning and electric use, even where, as in plaintiff's case, there exists a significantly more efficient and previously approved through the wall exhaust vent to which a new gas dryer can merely be connected without any alterations to the apartment’s electric service, bricks, cabinetry, plumbing or interior. h The court erred in failing properly to account for a false affirmation by the apartment corporation’s president. i It was error for the court to have dismissed plaintiffs claim under RPAPL §1515 on the basis that the court found no cases interpreting that section notwithstanding that the facts alleged by plaintiff fall within the plain language of that statute. 9. There are no related actions or proceedings now pending in any court of this or any other jurisdiction. Dated: New York, New York August 11, 2015 The Law Offices of DANIEL S. STEINBERG P.C. ~ By:_* Daniel S. Ste erg 355 Lexington Avenue, Suite 401 New York, NY 10017 (212) 666-3316 STEPHEN I. SILLER, ESQ. 885 Third Avenue, 16th Floor New York, NY 10022 (212) 981-2330 Attorneys for Plaintiff-Appellant Helen Siller SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK mene n cnet ne ene n ene e nee ee enn en nee nen en ene n ne ne nee, HELEN SILLER, Plaintiff, -against- Index No. 151313/2014 THE THIRD BREVOORT CORPORATION, DIANE C. NARDONE, CLIFF RUSSO, ELIZABETH LOUIE, ANDREW BAUM, NOTICE OF APPEAL GEORGE ALOI, CHRISTINE BECK, BONNIE HILLER, MORTIMOR C. LAZARUS, JANE WARREN, JOHN C. WOELL and BARBARA EISENBERG, Defendants. X PLEASE TAKE NOTICE that, plaintiff Helen Siller hereby appeals to the Appellate Division of the Supreme Court of the State of New York, First Department, from the Order of the Supreme Court, New York County (Shlomo Hagler, J.), dated July 14, 2015 and entered on July 15, 2015 Dated: New York, New York August 11, 2015 The Law Offices of DANIEL S. STEINBERG P.C. By Daniel S. Steinba 355 Lexington Avenue, Suite 401 New York, NY 10017 (212) 666-3316 STEPHEN I. SILLER, ESQ. 885 Third Avenue, 16th Floor New York, NY 10022 (212) 981-2330 Attorneys for Plaintiff Helen Siller INDEX NO. 151313/2014 (FILED: NEW YORK COUNTY CLERK 07/15/2015 11:34 AM NESCEF oc. NO. 123 RECEIVED NYSCEF: 07/15/ 2015 = 4 + ~ At Part 17 of the Supreme Court of the State of New York, held in and for the County of New York, at the Courthouse thereof located at 60 Centre Street, New, York, New York onthe /{_ day of duly, 2015 PRESENT: HON. SHLOMO HAGLER JSC. eeecceeenen ene nenn een e eee e ee neem enn nnn nee nanannmnnnenannnee ens HELEN SILLER, Plaintiff, -against- THE THIRD BREVOORT CORPORATION, Index No. 151313/2014 DIANE C. NARDONE, CLIFF RUSSO, ELIZABETH LOUIE, ANDREW BAUM, ORDER GEORGE ALOI, CHRISTINE BECK, BONNIE HILLER, MORTIMOR C. LAZARUS, JANE WARREN, JOHN C. WOELL, AND BARBARA EISENBERG, Defendants. meee ecenneenene enn ceenennn ene nnn enn nnecenennnnnnennnnrnenanmemmnnnX, Defendants having moved this Court for an Order, pursuant to CPLR 3211(a)(1) and 321 1(a)(7), dismissing plaintiff's Second Amended Verified Complaint, dated October 21, 2014, with prejudice and for such other, further and different relief as the Court deems just and proper; NOW, upon reading and filing the Affirmation of Barry G. Margolis, dated November 26, 2014, in Support of Motion to Dismiss the Second Amended Verified Complaint, together with the exhibits annexed thereto and the accompanying memorandum of law, the affirmation of Daniel S. Steinberg, dated January 7, 2015, in Opposition to Defendants’ Motion to Dismiss the Second Amended Complaint, the accompanying affidavit of Helen Siller, swom to May 7, 2014, te + a : together with the exhibits annexed thereto and the accompanying memorandum of law, the Reply Affirmation of Barry G. Margolis, dated January 26, 2015, in Further Support of Motion to Dismiss the Second Amended Verified Complaint, together with the exhibit annexed thereto, and the accompanying reply memorandum of law, AND upon the oral argument on the record on May 12, 2015 and June 15, 2015, and the transcripts memorializing said arguments, which are incorporated herein and made a part hereof, AND plaintiff during oral argument having discontinued her Eighth Cause of Action without prejudice; AND the Court, after due deliberation, having issuedan Order dated and entered June 15, 2015 directing that an order be settled; “NOW, THEREFORE, it is: ORDERED, that defendants’ motion to dismiss plaintiff's Second Amended Verified Complaint dated October 21, 2014 is granted in all respects, and the Second Amended Verified Complaint is hereby dismissed with prejudice. SHLOMO. HAGLER J.S.C. Tithe