x FIELDSTON PROPERTY OWNERS ASSOCIATION,

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1 FILED: NEW YORK COUNTY CLERK 04/19/ :02 PM INDEX NO /2016 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/19/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x FIELDSTON PROPERTY OWNERS ASSOCIATION, INC., Plaintiff, Index No.: Date Purchased: SUMMONS -against- Basis of venue: Defendant s principal residence at 160 Riverside MALVINA HALBERSTAM alk/a MALVINA Drive, New York, New York GUGGENHEIM, Defendant. x TO THE ABOVE NAMED DEFENDANT(S): YOU ARE HEREBY SUMMONED to appear in this action by serving an answer to the Plaintiff(s) at the address set forth below within 20 days after the service of this Summons (not counting the day of service itself), or within 30 days after service is complete if the summons is not delivered personally to you within the State of New York. YOU ARE HEREBY NOTIFIED THAT should you fail to answer or appear, ajudgment will be entered against you by default for the relief demanded in the attached Complaint. Dated: New York, New York April 19, 2016 CARTER LEDYARD & MILBURN LLP By: ~ Alan S. Lewis Jacob H. Nemon 2 Wall Street New York, New York Tel. (212) Fax (212) nemon@clm.com A tiorneys for Plaint~ff ! 1 of 16

2 To: Malvina Haiberstam a/ida Malvina Guggenheim 160 Riverside Drive New York, New York or Malvina Halberstam a/k/a Malvina Guggenheim Cardozo School of Law 55 Fifth Avenue, Room 506 New York, New York of 16

3 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x FIELDSTON PROPERTY OWNERS ASSOCIATION, INC., Plaintiff, Index No.: COMPLAINT -against MALVINA HALBERSTAM alicia MALVINA GUGGENHEIM, Defendant. x Plaintiff FIELDSTON PROPERTY OWNERS ASSOCIATION, INC. ( Association ), by and through its undersigned counsel, CARTER LEDYARD & MILBURN LLP, as and for its Verified Complaint against Defendant MALVINA HALBERSTAM AIKIA MALVINA GUGGENHEIM ( Defendant ), alleges as follows: NATURE OF THE ACTION 1. This is an action to collect the arrears owed by Defendant, a property owner in the Fieldston development in Riverdale, New York, to the Association for assessments of common charges, as authorized by the Fieldston Property Owners Association, Inc. By-Laws and the rules and regulations of the Association. 2. Defendant, the title owner of certain real property located in Block 5821, Lot 2860, in the County of Bronx in Riverdale, New Yofk (the Property ), has failed to make any payment for biannual assessments of common charges or payment to the Association s capital fund since January 2007, and is presently indebted to the Association the amount of $45, plus the Association s reasonable attorneys fees and costs of suit of 16

4 PARTIES 3. Plaintiff Fieldston Property Owners Association, Inc., is a domestic not-for-profit corporation, duly incorporated and existing pursuant to the laws of the State of New York, with an office address located at 279 West 23 Vt Street, Bronx, New York Since in or about 1929, Plaintiff has been the homeowners association for the vicinity known as Fieldston, a private residential community, located in Riverdale, Bronx, New York. 5. Defendant Malvina Halberstam alkla Malvina Guggenheim, is a resident of the State of New York and County of New York, with a residential address at 160 Riverside Drive, New York, New York 10024, and an office address at Cardozo School of Law, 55 Fifth Avenue, Room 506, New York, New York Defendant is an attorney duly admitted to practice law in New York since JURISDICTION AND VENUE 7. This Court has personal jurisdiction dyer Defendant because Defendant is a resident of the State of New York and does business in the State of New York. 8. Venue is proper before this Court pursuant to CPLR 503(a) because Defendant maintains a residence in the County of New York. FACTS I. Defendant is Subject to Association By-Laws and Rules and Regulations 9. Defendant is the title owner of the Property, which was conveyed by deed from Wolf Z. Guggenheim to Defendant, dated November 5, Defendant s deed is recorded in New York City records at reel 473, page 946 and is available on ACRIS at Doc. ID No. FT29~0b of 16

5 11. The Property is located on a tract of land in Fieldston, Riverdale, New York. 12. Property owners in Fieldston, including Defendant, have constructive and actual notice of the private nature of the Fieldston community from either express deed covenants, written notices and other communications from the Association, signs, private plumbing and sewage, planning and landscaping, and/or private security patrols. 13. Upon information andbelief, the Association provided each Fieldston property owner or member with a copy of the Fieldston Prop~rty Owners Association, Inc. By-Laws, as amended February 13, 1950, March 3, 1970, November 16, 1981, December 5, 1985, December 8, 1991, December 1998 and September 17, 2006 (the By-Laws ). 14. Article II, Section 1 of the By-Laws provides that each person who is a record owner of real property in the settlement known as Fieldston is a member of the Association. 15. Property owners are entitled to and do enjoy the facilities maintained and services provided by the Association, as the homeowners association, for the benefit of the entire community. 16. Article IV, Sections of the By-Laws provides that property owners have a corresponding duty to pay the Association for the pràperty owners proportionate share of the budgeted costs for such community services. 17. Article IV, Section 5 of the By-Laws provides that the amount of the assessments shall be set annually by the board of the Association and paid by the property owners biannually. 18. Article IV, Section 6(b) of the By-Laws permits the Association to make spedial assessments. 19. Article IV, Section 7 of the By-Laws further provides that a property owner who fails to pay any portion of any deficiency shall be liable to the Association for interest on the of 16

6 unpaid portion at the maximum legal rate, attorneys fees and expense, and a late payment charge in the amount of $100 per month for each full month such payment is late up to $1,2000 of the amount of the assessment that remained unpaid one month after it was due. 20. Property owners are obligated to pay assessments, whether or not they exercised the right to join the Association, as the Court held in Fleidslon Properly Owners Asso. v. Decoralive Trends, Inc., 83 Misc. 2d 685, 686 (App. Term 1st Dept. 1975), aff d, 56 A.D.2d 525 (1st Dept 1977), app. disni ci, 42 N.Y.2d 960 (1977). II. Defendant Failed to Make Timely Payments of Assessments 21. At all times relevant herein, pursuant to the board of the Association s duties and authority under the By-Laws, the board set the annual assessments of common charges for Fieldston each year. 22. The board of the Association has proportionally assessed each property owner for maintenance and improvement of common arrears, sewers and plumbing and security. 23. Upon information and belief, at all times relevant herein, Defendant was sent timely notices of such assessments of common charges. 24. Defendant has failed since January 2007 through the present to pay any of the Associations assessment of common charges or to timely object to Defendants obligations to make such assessments. 25. Defendants are further subject to late fees and interest under the By-Laws. 26. A true and correct schedule ofaliam~unts presently due and owing from Defendant to the Association for assessments is annexed hereto as Exh. A (the Schedule ). 27. Upon information and belief, the Schedule credited Defendant for all payments made by Defendant of 16

7 28. As set forth in the Schedule, Defendant is presently in arrears to the Association in the amount of $45,033.50, inclusive of late fees and interest as provided for in the By-Laws. 29. The Association has made due demand for payment of the arrears, but Defendant failed to and/or refused to make payment. III. The 1987 Stipulation 30. In or about December 1987, the Association commenced an action under the caption Fieldston Properly Owners Association, Inc. v. Malva Guggenheim (a/wa Halberstam), Index No /85, in the Civil Court of the City of New York, County of Bronx (the Prior Action ). 31. On or about November 5, 1987, the Association and Defendant entered into the Stipulation of Settlement, which in paragraph 8 acknowledged Defendant as a record owner of property in Fieldston and therefore a member of the [Association]. 32. The Stipulation of Settlement further provided in paragraphs 5-6: The FPOA and Halberstam further agree thathalberstam will hereafter be required to pay to the FPOA 50% of all her pro rata property assessments exclusive of parking patrol and security, which she will not be required to pay. The FPOA s bills that it will hereafter render to 1-lalberstam will show both the full amount that she would otherwise be charged and that amount reduced by 50%, which she will be responsible to pay. Halberstam agrees that all future payments of her property assessments to the FPOA in accordance with paragraph 5 above will be made on a timely basis. 33. The Stipulation of Settlement provided further in paragraph 6 that: In the event that Halberstam should fail to make timely payment of her property assessments as described in paragraph 5 above, this agreement will have no effect on the FPOA s legal rights to collect the full amount of the overdue assessments (i.e., the full property assessment without the 50% reduction) of 16

8 34. The Stipulation of Settlement did not otherwise modify Defendant s obligations under the By-Laws or rules and regulations of the Association nor did the Stipulation of Settlement contain any clause superseding or merging the By-Laws or rules and regulations of the Association. 35. As set forth above, since January 2007, Defendant has failed to malce any timely payments of assessments under the By-Laws, Rules and Regulations and Stipulation of Settlement. 36. In light of Defendant s breach of the Stipulation of Settlement, Defendant is obligated to pay the full amount of the assessments and not just the discounted amount in the Stipulation of Settlement. 37. The Association gave due notice to Defendant of Defendant s breach of the Stipulation of Settlement and obligation to pay the full amount of the assessments. AS AND FOR A FIRST CAUSE OF ACTION (Breach of Contract By-Laws) 38. The Association hereby repeats, realleges and incorporates by reference each and every allegation in the foregoing paragraphs as if fully set forth at length herein. 39. Defendant, as the owner of record of the Property in Fieldston and/or member of the Association, has expressly and/or impliedly, agreed to the terms of the By-Laws and rules and regulations of the Association, including without limitation the obligation to pay Defendant s proportional share of any regular assessments made on a bi-annual basis and any special assessments. 40. The Association has performed its duties to the Fieldston property owners by maintaining Fieldston s facilities and providing services of 16

9 41. The Association, using its business judgment, to made regular and special assessments upon all of Fieldston s property owners; which the Association has collected from Fieldston property owners other than Defendant. 42. Since January 2007, Defendant has failed to make timely payments of the principal amounts of assessments, in violation of Defendant s obligation under the By-Laws and rules and regulations of the Association. 43. Defendant is further subject to late fees and interest under the By-Laws. 44. Defendant is in arrears to the Association in the sum of $45,033.50, inclusive of late fees and interest through April The Association is entitled under the By-Laws to recover an award of the Association s reasonable attorneys fees and co~ts 0k~u~t herein. AS AND FOR A SECOND CAUSE OF ACTION (Breach of Contract Stipulation of Settlement) 46. The Association hereby repeats, realleges and incorporates by reference each and every allegation in the foregoing paragraphs as if fully set forth at length herein. 47. This cause of action is pleaded in the alternative to the first cause of action. 48. The Stipulation of Settlement is a valid and enforceable agreement between the Association and Defendant, obligating Defendant to make timely, regular payments of 50% of the Association s assessments to the Association. 49. Since January 2007, Defendant has failed to make timely payments of the principal amounts of assessments, in violatiop oçdefepdant s obligations under the Stipulation of Settlement, By-Laws and rules and regulations of the Association. 50. Defendant is in arrears to the Association in the sum of $25,225.39, inclusive of late fees and interest through April of 16

10 51. The Association is entitled under the By-Laws to recover an award of the Association s reasonable attorneys fees and costs of suit herein. AS AND FOR A THIRD CAUSE OF ACTION (Account Stated) 52. The Association hereby repeats, reallcges and incorporates by reference each and every allegation in the foregoing paragraphs as if fully set forth at length herein. 53. The Association rendered statements to Defendant for assessments of common charges due and owing from Defendant. 54. Such statements constituted an account stated. 55. Defendant received and retained such statements without objection. 56. Since January 2007, Defendant has failed to malce timely payments of the principal amounts of assessments. 57. Defendant is in arrears to the Association in the sum of $25,225.39, inclusive of late fees and interest through January of 16

11 CONCLUSION WHEREFORE, the Association respectfully requests that this Honorable Court enter judgment against Defendant and in favor of Plaintiff in the amount of $45, (or, in the alternative, $25,225.39), plus pre-judgment interest at the rate of 16% per annum, post-judgment interest at the rate of 16% per annum, costs and disbursements, an award of the Association s reasonable attorneys fees and all such other and further relief as this Honorable Court deems to be just and equitable. Dated: New York, New York April 19, 2016 CARTER LEDYARD & MILBURN LLP By: ~ Alan S. Le~is Jacob H. Nernon 2 Wall Street New York, New York Tel. (212) Fax (212) nemon@clm.com Attorneys for PlaintjJT To: Malvina Halberstam a/k/a Malvina Guggenheim 160 Riverside Drive New York, New York or Malvina Halberstam a/k/a Malvina Guggenheim Cardozo School of Law 55 Fifth Avenue, Room 506 New York, New York of 16

12 EXHIBIT A 12 of 16

13 Halberstam/Guggenheim Vacant Lot Acct # Date Arrears FPOA Dues Capital Security I.ate Fee Interest Legal Payments Jul-08 $ $ $ (664.73) Aug-08 $ $ 6.58 Sep Oct Nov Dec Jan-09 1, Feb Mar Apr May Jun-09 ioo.oo Jul-09 1, Aug Sep Oct Nov-09 ioo.oo Dec Jan Feb Mar Apr May Jun-10 ioo.oo Jul Aug Sep-10 ioo.oo Oct Nov Dec Jan-11 1, Balance $ , , , , , , , , , , , , , , , , , , , , , , , , , of 16

14 Halberstam/Guggenheim Vacant Lot Acct # Feb Mar Apr May Jun Jul-11 1, Aug Sep Oct Nov Dec Jan-12 1, Feb Mar Apr May Jun Jul-12 1, Aug-12 ~., Sep Oct Nov-12 ioo.oo Dec Jan-13 1, Feb Mar Apr May Jun-13 ioo.oo Jul-13 1, Aug Sep Oct-13 ioo.oo Nov , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , of 16

15 Jan-14 Feb-14 Mar-14 Apr-14 May-14 Jun-14 Jul-14 Aug-14 Sep-14 Oct-14 Nov-14 Dec-14 Jan-15 Feb-15 Mar-15 Apr-15 May-15 Jun-15 Jul-15 Aug-15 Sep-is Oct-15 Nov-15 Dec-15 Jan-16 Feb-16 Mar-16 Apr-16 Hal bersta rn/guggenheim Vacant Lot Acct # j Dec , , , ~ , , $ 18, $ 4, $ (664.73) $ 9, FPOA Dues Capital Security Late Fee $ 12, Interest $ $ - $ $ Legal $ - Payments 13, , , , , , , , , , , , , , , , , , , , , , , , , , , , , $ 45, Interest based on full charges 15 of 16

16 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x FIELDSTON PROPERTY OWNERS ASSOCIATION, INC., Plaintiff, Index No.: SUMMONS AND COMPLAINT -against MALVINA HALBERSTAJ~4 alic/a MALVINA GUGGENHEIM, Defendant. x CARTER LEDYARD & I IILBURN LLP COUNSELORS AT LAW 2 WALL STREET NEW YORK, N.Y (212) of 16