Board of Directors of the 340 E. 93 St. Corp v Acevedo 2019 NY Slip Op 30023(U) January 4, 2019 Supreme Court, New York County Docket Number:

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1 Board of Directors of the 340 E. 93 St. Corp v Acevedo 2019 NY Slip Op 30023(U) January 4, 2019 Supreme Court, New York County Docket Number: /2018 Judge: Arlene P. Bluth Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's ecourts Service. This opinion is uncorrected and not selected for official publication.

2 [* FILED: 1] NEW YORK COUNTY CLERK 01/07/2019 INDEX NO / :29 A SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ARLENE P. BLUTH PART IAS MOTION 32 Justice X BOARD OF DIRECTORS OF THE 340 EAST 93 STREET CORP, - v - Plaintiff, JAIME ACEVEDO, LINDSAY LACEY, DEVIN LACEY, EFRAIN FRANK VAZQUEZ, JOSH VAZQUEZ, STEPHEN SEMLITZ Defendants. INDEX NO /2018 MOTION DATE 12/18/2018 MOTION SEQ. NO. 003 DECISION AND ORDER X The following e-filed documents, listed by NYSCEF document number (Motion 003) 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58,59,60,61,62,63,64,65,66,67,68, 71, 72, 73, 74,81,82,83,84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94,95, 96,97, 98, 99, 100, 101, 102, 103, 104 were read on this motion to/for JUDGMENT-SUMMARY The motion for summary judgment by plaintiff is granted and the question of reasonable attorneys fees shall be determined at a hearing. Background This action arises out of a fight that occurred on May 27, 2018 at a building operated by plaintiff. Defendant Acevedo got into an altercation with defendants Josh and Efrain Vazquez. Efrain lives in the co-op and his son, Josh, was visiting that day. Defendant Semlitz is the shareholder of record in the apartment where Efrain lives. Acevedo lives across the street and often visited his then-girlfriend, defendant Lindsay Lacey (also a shareholder at the co-op). After the altercation between Acevedo and the Vazquezs ended, Acevedo left the building. A few minutes later, Acevedo returned to the co-op with a baseball bat and was accompanied by his father. Acevedo then bashed the front desk with the bat and damaged the desk. Page 1of7 1 of 7

3 [* FILED: 2] NEW YORK COUNTY CLERK 01/07/2019 INDEX NO / :29 A Plaintiff then commenced this action for inter alia an injunction barring Acevedo from the premises (340 East 93'd Street), banning the Vazquezs from possessing or using any weapons in or near the building and awarding plaintiff the cost oflegal fees and disbursements incurred in this action. Plaintiff also moved, via order to show cause, for inter alia a temporary restraining order banning Acevedo from the building. The parties appeared for oral argument on the return date for the order to show cause, July 2, 2018, and the parties entered into a stipulation so-ordered by the Court (NYSCEF Doc. No. 17). The parties, including defendant Acevedo (who appeared prose), agreed that Acevedo would be banned from entering or getting near the building, defendant Lacey was directed to deny Acevedo access to the building, the Vazquezs were banned from carrying weapons (including baseball bats) and inciting violent behavior in the building (id.). Plaintiff now moves for summary judgment on the only remaining portion of the casethe attorneys' fees. Plaintiff states that since the parties entered into the July stipulation, there have been no further incidents. Plaintiff asserts that summary judgment is appropriate because it successfully obtained a permanent injunction against defendants via stipulation and it is entitled to attorneys' fees because it prevailed in this case. Plaintiff claims that it is entitled to recover attorneys' fees from defendant Lindsay Lacey, defendant Devin Lacey (Lindsay's estranged husband, but still a shareholder) and Stephen Semlitz (the shareholder of the apartment in which Efrain Vazquez lives). Plaintiff seeks $48, for fees and disbursements, $8, for bringing the instant motion, and $10, to defend against Lacey's prior order to show cause, which sought to prevent eviction based on attorneys' fees due pending the outcome of this case. That order to show cause was granted by stipulation. Page 2 of 7 2 of 7

4 [* FILED: 3] NEW YORK COUNTY CLERK 01/07/2019 INDEX NO / :29 A In opposition to this motion, Lindsay Lacey points out that she paid to repair the lobby desk with the proceeds she received from her homeowner's insurance. She emphasizes that she has not let Acevedo back in the co-op and claims she has tried to settle the case with plaintiff. Lacey observes that she did not participate in the fight and that she readily entered into an agreement with plaintiff. Lacey complains that plaintiff did not contact Lacey before commencing this action to see if she would be willing to ban Acevedo. Lacey suggests that the Court modify the permanent injunction so that Lacey need not be required to remove Acevedo from the premises ifhe decides to enter. Lacey promises she will not intentionally admit him to the building. The Vazquezs and Semlitz cross-move to dismiss the complaint on the ground that plaintiff did not comply with its own notice requirements under the proprietary lease. They claim that there was no emergency situation that required the commencement of an action without notice and that they never defaulted under the proprietary lease. These defendants claim that there were criminal charges pending against Efrain and Josh that contemplated the type of injunctions sought by plaintiff. They also make a procedural point~plaintiff did not wait until all answers were served before filing the instant motion. Discussion To be entitled to the remedy of summary judgment, the moving party "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact from the case" (Wine grad v New York Univ. Med Ctr., 64 NY2d 851, 853, 487 NYS2d 316 [1985]). The failure to make such a prima facie showing requires denial of the motion, regardless of the sufficiency of any opposing papers (id.). When deciding a summary judgment motion, the court views the alleged facts in the light Page 3 of 7 3 of 7

5 [* FILED: 4] NEW YORK COUNTY CLERK 01/07/2019 INDEX NO / :29 AM most favorable to the non-moving party (Sosa v 46th St. Dev. LLC, 101 AD3d 490, 492, 955 NYS2d 589 [1st Dept 2012]). Once a movant meets its initial burden, the burden shifts to the opponent, who must then produce sufficient evidence to establish the existence of a triable issue of fact (Zuckerman v City of New York. 49 NY2d 557, 560, 427 NYS2d 595 [1980]). The court's task in deciding a summary judgment motion is to determine whether there are bonafide issues of fact and not to delve into or resolve issues ofcredibility (Vega v Restani Constr. Corp., 18 NY3d 499, 505, 942 NYS2d 13 [2012)). If the court is unsure whether a triable issue of fact exists, or can reasonably conclude that fact is arguable, the motion must be denied (Tron/one v Lac d'amiante Du Quebec, Llee. 297 AD2d 528, , 747 NYS2d 79 [l st Dept 2002], a.ffd 99 NY2d 647, 760 NYS2d 96 [2003]). As an initial matter, the Court recognizes that the answer to the amended complaint by the V azquezs and Semlitz was filed after the instant motion was filed. But this Court prefers to handle motions on their merits and defendants will suffer no prejudice if this procedural error is overlooked. Defendants were able to fully briefthe issues present in the motion. \ Next, the Court finds that plaintiff is entitled to summary judgment. It~ complaint sought injunctive relief and it secure"d that relief through a so-ordered stipulation with the parties. There is no doubt that plaintiff prevailed in this action and the only remaining issue is the amount of reasonable attorneys' fees owed to plaintiff. Defendants' contention that plaintiff should have contacted them before bringing the case is a reasonable argument for reducing the amount of fees owed, but it does not defeat plaintiffs motion or compel the Court to grant the Vazquezs' crossmotion. Page 4 of 7 4 of 7

6 [* FILED: 5] NEW YORK COUNTY CLERK 01/07/2019 INDEX NO / :29 AM l...e11sl The Court finds that the Proprietary allowed plaintiff to bring this action and recover 1 attorneys' fees from both the Laceys and Semlitz (the shareholders involved in this case). Paragraph 42 of the Proprietary Lease provides that "Jn the event of a breach or threatened breach by Lessee of any provision thereof, the Lessor shall have the right of injunction and the right to invoke any remedy at Jaw or in equity, as if re-entry, summary proceedings and other remedies were not herein provided for, and the election of one or more remedies shall not preclude the Lessor from any other remedy" (NYSCEF Doc. No. 59, if 42). This provision mentions nothing about providing notice to shareholders and permits plaintiff to pursue an action like the one commenced here. Paragraph 28 of the Proprietary Lease permits the recovery of reasonably attorneys' fees and disbursements if plaintiff commences an action based cin a shareholder's default (id. if 28). The default here is clear-defendants violated House Rule S(a). They interfered with the comfort and convenience of other shareholders by either engaging in the fight or by having a guest participate in the fight; the Vazquezs were fighting with Lacey's guest (Acevedo) (see id. if13 ["Breach ofa House Rule shall be a default under the lease"]). The fact that Ms. Lacey was not directly involved in the fight is immaterialthere is no dispute that Acevedo was the on the premises to see Lacey and the Proprietary Lease holds that shareholders must ensure that guests follow the House Rules (id. if 13). These three provisions, when taken together, allow plaintiff to bring this action and recover attorneys' fees from shareholders. The Court observes that the notice provision relied upon by defendants in opposition, paragraph 31 ( e ), concerns termination of the lease (id. if 31 ["Termination of Lease by Lessor"]). It does not directly concern notice that plaintiff must give for a mere default of the B BOARD OF DIRECTORS OF THE vs. ACEVEDO, JAIME Page 5 of 7 5 of 7

7 [* FILED: 6] NEW YORK COUNTY CLERK 01/07/2019 INDEX NO / :29 AM lease. And here there is no indication that plaintiff seeks to terminate the lease; plaintiff sought only an injunction and its attorneys' fees for bringing this action. The Court also agrees with Lacey that the injunction should be clearer. Therefore, the injunction is modified to reflect the fact that Lacey shall have no obligation to plaintiff if Acevedo is on the premises without Lacey's knowledge. That is, Lacey is not a guarantor of Acevedo's behavior unless he is her guest. If Lacey permits Acevedo to be on the premises, then she is liable for the fines set forth in the July 2, 2018 stipulation. Summary The Court recognizes that proprietary leases must be strictly construed. This Proprietary Lease is clear-it has a catch-all provision allowing plaintiff to seek an injunction and permits recovery of reasonable attorneys' fees. The question, then, is how much is reasonable. It is obvious to the Court that a hearing is necessary to make that finding. The Court declines to award the amount sought by plaintiff in the papers because defendants raise reasonable objections to the amount of fees incurred. Defendants point out that they did not oppose the injunctive relief; in fact, they stipulated to it. Defendant Lacey also claims that she was forced to bring an order to show cause (Motion Sequence 002) because plaintiff's counsel refused to confirm that plaintiff would not seek to terminate Lacey's lease due to the claimed fees due. Lacey points out that only after the parties appeared for oral argument on October 16, 2018 was an agreement reached (NYSCEF Doc. No. 80). The Court is interested in whether litigation and court appearances were actually necessary or just required because plaintiff was being unreasonable and relying on what it thought was a right to unlimited attorneys' fees. And a review of the bills demands further inquiry. For instance, plaintiff's counsel billed two hours (at $395 per hour) to "Supervise service of order to show cause, summons and Page 6 of 7 6 of 7

8 [* FILED: 7] NEW YORK COUNTY CLERK 01/07/2019 INDEX NO / :29 AM complaint" (NYSCEF Doc. No. 49 at 2). Plaintiffs counsel might be able to show a reasonable basis for this charge but, facially, it's not clear why that was necessary. It may be that the fees plaintiff seeks are reasonable and plaintiff will be awarded the full amount it seeks. After all, there was a fight in the lobby that resulted in the destruction of the front desk and the filing of criminal charges. Nevertheless, having an attorneys' fees provision in a proprietary lease is supposed to protect a co-op's board of directors; it is not a blank check for the co-op s attorneys. Accordingly, it is hereby ORDERED that the motion for summary judgment is granted only to the extent that the injunction agreed to by the parties on July 2, 2018 is made a permanent injunction and that injunction is modified only to reflect the fact that defendant Lindsay Lacey shall be liable for Acevedo's actions only if he is on the premises as her guest (in violation of the stipulation); and it is further ORDERED that the issues of attorneys' fees shall be resolved by this Court at a hearing. The parties are directed to submit three dates (omitting Tuesdays) between January 28 and March 25 that all parties are available to conduct the hearing. These dates must be submitted by January 14 via e-filing. CHECK ONE: APPLICATION: 1-Y-t t DATE CHECK IF APPROPRIATE: CASE DISPOSED ~ GRANTED D DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN NON FINALDISf~@l~ AR~NE p_ BLUTH ~ GRANTED IN PART LJ OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT D REFERENCE Page 7 of 7 7 of 7