FILED: NEW YORK COUNTY CLERK 04/29/ :26 PM INDEX NO /2014 INDEX N /2014

Transcription

1 FILED: NEW YORK COUNTY CLERK 04/29/ :26 PM INDEX NO /2014 INDEX N /2014 NYSCEF ~I LED DOC. : NEW NO. 72 YORK COUNTY CLERK 07 _ : 30 P RECEIVED NYSCEF: 04/29/2015 NYSCEF DOC. N0. 2 RECEIVED NYSCEF: 07/25/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK HOUSING DEVELOPMENT FUND CORPORATION, Index N~.: OS 1313/2014 -a~ainst- Plaintiff, VERIFIED ANSWER AND COUNTERCLAIMS JOSEPH VIOLA, EXECUTOR OF THE ESTATE ~F ALICE VIOLA, Defendant. Defendant Jc~scph Viola, Executor of the Estate of Alice Vila, by his attorneys, Rosenberg & Estis, P.C., as and for an answer to the complaint dated Aril 25, 2014 (the "Complaint"), alleges as follows: NATURE OF 'THIS ACTION 1. This is an action that will determine whether or not the plaintiff housing cooperative can force a shareholder, against the shareholder's will, to sell a valuable co-op apartment located in the Chelsea neighborhood of Manhattan (anti the shares appurtenant thereto), to the coopereative's Board for less than three percent (3%) of the apartment's fair market value based upon a purported "Resale Policy" that was never enacted and is unlawful in any event. ANSWER 2. Denies knowledge or information sufficient t~ form a belief as to the truth of the allegations sit forth in paragraphs 1-2 0~ the Complaint. 3. Denies each and every allegation set forth in paragraphs 3-11, 15, and 17-] 9 of the Complaint, and respectfully refers the Court to any documents referenced in said paragraphs for their terms and legal effect. RE1834G~10001 ~544837v 1

2 4. Admits the allegations set forth in paragraphs l 2 and 14 of the Complaint. 5. Ucnies each and every allegation set forth in paragraph 13 of the Complaint, respectfully refers the Court to any documents referenced in said paragraphs for their terms and legal effect, and states that the late Alice Viola was a shareholder in the cooperative housing corporation known as Eighth Avenue Housing Development Fund Coiforation, and was the owner of the shares appurtenant to Apartment 2N in the building located at th Avenue, Ncw York, Ne~v York. 6. Dcnics each and every allc;g~tion set forth in paragraph 16 of the Complaint, respectfully refers the Court t~ any documents referenced in said paragraphs iui their teens and legal effect, and states that cietendant is marketing, and seeks to sell Apartment 2N. AS AND FOYt A FIRST AFFIRMATIVE DF,FENSE 7. Plaiiltitf lacks standing at~d/or capacity to commence and maintain this action. AS AND FOR A SECOND AFFIRMATIVE DEFENSE S. The purported Resale Policy alleged iii the Colliplaint was not duly car properly noticed to eligible shareholders for a vote. 9. Thy; Resale Policy alleged in the Complaint was not duly ar properly voted on. 1 U. The Resale Policy alleged in the Complaint was not duly or properly approved, ratified, or oth~rwisc passed. 11. The Rcsalc Policy alleged itl the Complaint was riot duly or ~~roperly crlacted. 12. By reason of the foregoing, the purported Resale Policy is a nullity and does not govern defendant. RE;'.834G v I -2-

3 AS AND FOR A THIRD AFFIRMATIVE DEFENSE 13. To the extent that the Resale Policy was duly and properly noticed, voted on, approved, and enacted, it is void as an unreasonable restraint on the alienation of property. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE l4. To the extent that the Resale Policy was duly and properly noticed, voted on, approved, and enacted, it is void as against public policy. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 15. Plaintiff has failed to state a cause of action, and has failed to plead the requisite elements of a mandatory injunction. AS AND F4R A FIRST COUNTERCLAIM (Declaratory Judgment) 16. Defendant repeats and realleges all prior allegations as if set forth in full below. 17. Defendant wishes to sell, for fair market value, Apartment 2N (the "Apartment"} in the building located at Eighth Avenue, New York, New York (the "Building"). 18. Plaintiff purports to have enacted the Resale Policy, which requires defendant, if he wishes to sell the Apartment, to offer plaintiff s board the right to purchase the Apartment at a price far below market value. 19. The fair market value of the Apartment is approximately $1 million. 20. Notwithstanding the Apartment's fair market value, plaintiff's pul-~orted Resale Policy requires defendant t~ offer plaintiff andlor its Board the opportunity to purchase the Apartment for approximately $27, The Resale Policy was never enacted or, in the alternative, was not properly enacted in accordance with applicable law. RE: v 1-3-

4 22. By reason of the foregoing, defendant is entitled to a declaration that the Resale Policy was never enacted or was never properly enacted, and does not bind defendant. 23. Defendant has no adequate remedy at law and there is a justiciable controversy between the parties. AS AND FOR A SECOND COUNTERCLAIM (Declaratory Jud~nent) 24. Dc;fcndant repeats and realleges all prior allegations as if set forth in full below. 25. In the event that the Resale Policy was duly enacted, it is an unlawful restraint on alienation of property and/~r violative of public policy. 26. By reason of the foregoing, defendant is entitled to a declaration that the Resale Policy is unlawful and therefore void. 27. Defendant has nn adequate remedy at law and there is a justiciable controversy between the parties. AS AND FOR A THIRD COUNTERCLAIM (Injunctive Relied 28. Defendant repeats and realleges all prior allegations as if set forth in full below. 29. The Resale Policy was not duly enacted and/or is unlawful. 3U. Defendant will suffer irreparable harm if he cannot sell on the #'ree market, or is forced to sell to Plaintiff for a price far below fair market value, the Apartment and the shares appurtenant thereto. 31. By reason of the foregoing, defendant is entitled to a preliminary and permanent injunction restraining plaintiff from enforcing the Resale Policy. 32. Defendant has no adequate remedy at law. RE18346f3\ $37v 1-4-

5 AS AND FOR A FOURTH COUNTERCLAIM (Accounting) 33. Defendant repeats and realleges all prior allegations as if set forth in full below. 34. In violation of New York's Business Corporations Law ("BCL"), other applicable law, and plaintiff's governing documents, plaintiff has failed and refused to prepare audited financial statements. 35. In violation of New York's Business Corporations Law, other applicable law, and plaintiff's governing documents, plaintiff has failed and refused to hold Board and shareholder mcctings. 36. In violation of New York's Business Corporations Law, other applicable law, and plaintiff s governing documents, plaintiff has failed and refused to prepare minutes for any Board or shareholder meetings that have occurred. 37. Plaintiff has, and other shareholders have, demanded to review plaintiff s financial statements. 38. In violations of the BCL, applicable law and plaintiff's governing documents plaintiff has refused to provide copies of financial statements to shareholders. 39. Plaintiff owes defendant a fiduciary duty. 40. Further demands to plaintiff to account for the use and expenditure of its funds would be futile. 4l. By reason of the foregoing, defendant is entitled to an order compelling plaintiff to perform an accounting. RE18346K v 1-5-

6 AS AND FOR A FIFTH COUNTERCLAIM (Declaratory Judgrrient) 42. Defendant repeats and realleges all prior allegations as if set forth in full below. 43. Upon information and belief, the shareholder/owner of Unit SN in the Building is marketing his apartment for sale. 44. Upon information and belief, said shareholder has not been directed to sell Unit SN to plaintiff pursuant to the purported Resale Policy. 45. Upon information and belief, plaintiffls Board does not intend to enforce the purported Resale Policy against said shareholder. 46. Such unequal treatment of shareholders violates the BCL, plaintiff s governing documents, and applicable law. 47. By reason of the foregoing, to the extent the Resale Policy was duly enacted and is lawful, defendant is entitled to a declaration that the Resale Policy cannot be enforced as against defendant. 48. Defendant has no adequate remedy at law and there is a justiciable controversy between the parties. AS AND F4R A SIXTH COUNTERCLAIM (Breach of Proprietary Lease and By-Laws} 49. Defendant repeats and realleges all prior allegations as if set forth in full below. 50. Pursuant to plaintiff s governing documents, plaintiff is obligated to repair and replace the windows in defendant's apartment as necessary. 51. Pursuant to plaintiff's governing documents, plaintiff is obligated to provide and install a new floor in the Apartment at plaintiff s sole cost and expense. R E1834G v 1-6-

7 52. Pursuant to plaintiff s governing documents,, plaintiff is obligated - to make capital impravemet~ts to the Apartment in the amount of $25,00 at plaintiff's sole cost and expense. 53. The windows in defendant's a~~ai-tment rewire replacement, at a cost believed to ~~c,`~ l (~,UO~. 54. Defendant has requested that plaintiff replace said windows in the a~ai-tizlent. SS. SC. The floor in the Apartment requires replacement, 1t a ct~st believcc~ tc~ he ~ l S,000. Defendant has requested that plaintiff provide and install new flooring ire the Apat~tment. 57. Defendant has requested that plaintif't; v~rith defendant's collaboration anti approval, make capital i~nprovernents to the A~artinent in th.e amount of $25,00() at plaintiff's sole cost and ex~~ezlse. S~. I1] V141~t10t1 Of ]~5 Oh11~T~~1()I7S 'CO C~C;tLI1Cj~3.I~t, plaintiff has failed and rcfusc;c~ to replace any windows. in the Apartment. 59. In violation of its obligations to c~efendai~t, ~~laintiff has failed and refused to provide and install new flovt~ing in the Apartment. 60. In violation Uf its obligations to defendant, plaintiff has failed and. refii.sed to make capital i~nprovemen~s to the A~~~~rtxnei~t in the ain~u~7t ~f S2S,000. fit. By reason of the foregoing, defendant has been ciama~;ed in an amount to be determined at trial, but in no event less than $50,00. WHEREIN QRE, defendant demands judgment dismissing the complaint, and judbine~~t: a. Un the first countcrclaitn, a dc;claration that the purported Resale Policy was never enacted or was never properay enacted, and does not bind dcfenciant; R~1834b81UW v t -7-

8 h. On the second counterclaim, a declaration that the purported Resale Policy is unlawful and void; c. 4n the third counterclaim, injunctive relief restraining plaintiff from enforcing the purported Resale Policy as against defendant; d. On the fourth counterclaim, c~rdcri~~g plaintiff to perform an accouilti~lg; e. On the fifth counterclaim, a declaration that the purported Resale Policy cannot be enforced against defendant; f. On the sixth counterclaim, a Inoncy judgment in an amount to be determined at trial but in n~ event less than $50,000; and ~. such ~thcr and further relief in defendant's favor as this Court may deem just, proper and equitable. Dated: New York, New York June 27, 2() l 4 ROSENBERG & ESTIS, P.C. Attoi^neys,for derendunt By: ~~~ ~ Dani S h~~~arti 733 Third A~enuc New Yo~; New York (212} R El$3468~.00U 1 X54483 h~ 1-8-

9 VERIFICATION Dani Schwartz, an attorney at law duly admitted to practice before the courts of the State of Ncw York, hereby a#firnis the #ollowing to be true under the ~enaltics of ~cijury pursuant t~ CPLR 21 U6: 1. I am a member of the law firn~ of Rosenberg & Estis, I'.C., attorneys for the defendant have read the contents of the defendant's Answer &Counterclaims and krlc~~v the contents thereof; and the same is true to my own knowledge, except as to the matters therein stated to be alleged upon information and beiict; and as to those matters, I believe them to be true based upon a i-cvicw of the books and records of the defendant. 3. This verification is made pursuant to the provisions of (.'PLR 3020(4)(3). Dated: Ncw York, Ncw York June 27, 2014 RE~ `~ v I -9-