Building, the Plaintiff rightfully should have proceeded to file one ormore complaints

Transcription

1 FILED: NEW YORK COUNTY CLERK 07/19/ :01 AM INDEX NO /2016 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 07/19/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK CONDOMINIUM BOARD OF MANAGERS OF : TRIBECA SUMMIT, Index No /2016 -X Plaintiff -against- AFFIRMATION IN : SUPPORT OF MOTION 415 PR LLC and PARK RIGHT CORPORATION, TO DISMISS Defendants. -X PERRY BURKETT, ESQ., an attorney duly admitted to practice before the Courts ofthe State of New York, affirms pursuant to all the penalties of perjury as follows: 1. I am the attorney for Park Right Corp. (hereinafter "Park Right") and that I am fully familiar with all the facts and circumstances concerning the operation of a public parking facility by Park Right at 415 Greenwich Street, New York, New York (hereinafter "the Building"). 2. That I make this affirmation insupport of Park Right's motion to dismiss the Complaint as against it pursuant to CPLR Section 3211(a)(3), 3211 (a)(2) and 3211(a)(7) and requesting that the Courtaward the costs of this motion to Park Right along with such other and further relief as the Court may deemjust and proper. 3. It is a generally accepted precept in the law that prior to commencing an action for either a declaratory judgment or a permanent injunction, there is a requirement that the plaintiffs seeking such relief must first exhaust all available administrative remedies. 4. In thisparticular case, the Plaintiff has noteven made an attempt to avail itselfof the proper administrative remedies available. 5. Pursuant to the alleged existing violations concerning the operation of the garage in the Building, the Plaintiff rightfully should have proceeded to file one ormore complaints 1 of 9

2 with either the City Planning Commission, the New York City Department of Buildings, the New York City Department of Environmental Conservation, and/or the New York City Consumer Affairs Department. 6. Plaintiffhas failed to demonstrate that it filed complaints with any ofthese administrative agencies which govern the rules and regulations concerning alleged violations by the garage including the appropriate operating rules for a public parking facility. Indeed, the Complaint in the above-entitled action fails to allege that any action was taken by the Plaintiff in reporting any of the alleged violations to those governmental agencies which in fact have the power and the right to enforce against such violations in the first instance. 7. Instead, by coming directly to the Supreme Court to litigate these matters, the Plaintiff would take the enforcement of such laws and rules into its own hands and usurp the enforcement powers of the aforesaid governmental agencies. 8. In this regard, the Court's attention is directed to a number of interesting cases and legal decisions which support the above argument: (A) Wong v. Gouverneur Gardens Housing Corp., 764 N.Y.S.2d 53, 308 A.D.2d 301 (2003) - In this case a cooperative shareholder of an apartment under the Mitchell-Lama program sought declaratory judgment that she was the lawful occupant of an apartment after the owner served her with preliminary notice of eviction, she moved for a Yellowstone injunction to prevent owner from terminating her lease, pending determination of her action for a declaratory judgment, the owner moved to dismiss. The Supreme Court New York County granted the shareholder a temporary restraining order and denied owner's motion to dismiss. The owner appealed. The Supreme Court Appellate Division held that primary jurisdiction required the Court to defer to administrative determination by the New York City Department of Housing Preservation and Development. The Appellate Division reversed the holding of the lower court. 2 of 9

3 (B)Katz 737 Corp. v. Lester Cohen et.al N.Y.S.2d A.D.3d 144 (2012) - In this action a landlord brought suit alleging that tenants had fraudulently underreported their income to avoid luxury deregulation of their dwelling unit. The Supreme Court New York County dismissed the complaint for failure to state a cause of action. The landlord appealed and the lower court's dismissal was affirmed. The court's decision stated in part: "having failed to pursue administrative appeal before the division of Housing and Community Renewal of challenge to tenants' qualification of rent-regulated status pursuant to luxury deregulation law, landlord failed to exhaust its administrative remedies and was precluded from seeking judicial review, nor was landlord relieved of need to comply with exhaustion rule by recasting its petition for review of administrative determination as a tort action. (C) Cox v. J.D. Realty Associates. 637 N.Y.S.2d A.D.2d 179 (1995) - the Court made the following pertinent statement in its decision: "the availability of a judicial forum by no means implies an automatic right to equitable relief in Supreme Court. It is well settled that 'the extraordinary remedies of injunctive and declaratory reliefare available only where resort to ordinary actions or proceedings would not afford adequate relief". "Gaynorv Rockefeller. 15 N.Y.2d N.Y.S.2d N.E. 2d 627: Rockland Light and Power Company v. City of New York, 289 N.Y.45, N.E.2d 803 (that judicial proceedings might be commenced is not a sufficient basis for the exercise ofsupreme Court's equitable powers (Koob v. IDS Financial Services, 213 A.D.2d 26, 32, 629 N.Y.S.2d 426)." (D)61 West 62 Owners Corp. v. CGM EMP LLC. 906 N.Y.S.2d A.D.3d 330 (2010). the above point as to exhaustion of administrative remedies is eloquently outlined in the dissenting opinion of Justice Tom wherein he comments as follows: "a partymay pursue an equitable remedy only in the absence of the 3 of 9

4 availability of other adequate relief. Simply because a party has access to the judicial forum does not automatically bestow a right to equitable injunctive relief in the Supreme Court. It is well settled that'... the extraordinary remedies...of injunctive and declaratory relief are available only where resort to ordinary actions or proceedings would not afford adequate relief. (Gaynor v Rockefeller, 15 N.Y.2d 120, N.Y.S.2d 584, 204 N.E. 2d 627 (1965) (availability of proceeding before State Commission before Human Rights precludes the aid in equity), quoting Rockland Light and Power Company v. City of New York, 289 N.Y N.E.2d 803 (1942) (declaratory judgment); see; Cox v. J.D. Realty Associates, 217 A.D.2d , 637 N.Y.S. 2d 27 (1995) (preliminary injunction). "Since neither plaintiff nor any of the shareholders of the cooperative corporation has attempted to pursue either of two distinct administrative remedies or demonstrate the ineffectiveness of available administrative sanctions, Plaintiff should not be allowed to invoke the Court's equitable jurisdiction." "As to the grant of preliminary relief, plaintiff has offered no reason why it should be accorded the extraordinary relief of an injunction - rather than preserving the status quo awards the remedy ultimately sought in the action. While asserting in conclusory fashion in the complaint that the cooperative "has no adequate remedy at law," plaintiff offered no explanation why it has failed to pursue a more expeditious administrative remedy. While the second cause of action seeks reliefunder the Noise Control Code, plaintiff does not explain why the bar's habitual violations of the Noise Code have not been brought to the attention of New York City's Department of Environmental Protection, which possesses ample power to redress the grievance including the imposition of substantial civil penalties", the issuance of cease and desist orders, and the sealing of offending sound equipment. Nor does plaintiff explain why it did not enlist the offices of the New York State Liquor Authority, which is vested with supervisory authority over the bar and is empowered to suspend its liquor license (effectively suspending its operation) on the grounds of excessive noise. (See matter of Beer Garden v. New York 4 of 9

5 State Liquor Authority, 79 N.Y.2d N.Y.S.2d NE2nd 1193 (1992). (Disorderly conduct under Alcoholic Beverage Law Section 106(6) include excessive noise); Matter of Circus Disco v. New York State Liquor Authority. 51 N.Y.2nd N.Y.S. 2nd 491,409 N.E.2nd 963 (1980): Matter ofculture Club ofnew York City v. New York State Liquor Authority, 294 A.D.2d 204, 742 N.Y.S. 2nd 238 (2002)." (E) Sabino v. DiNapoli, 935 N.Y.S. 2d A.D.3rd 1392 (2011) - In this case where an employee brought an Article 78 proceeding against the State Controller the lower court dismissed the complaint and the dismissal was affirmed by the Appellate Division of the Supreme Court. The decision of the Court made the following statement: "We affirm. It is wellsettled thata party seeking to challenge of an administrative agency must first exhaust available administrative remedy (See Watergate II Apartments v. Buffalo Sewer Authority. 46 N.Y. 2nd 52, 412 N.Y.S. 821, 385 NE 2nd 560; Matter of Connor v. Town of Niskavuna. 82 A.D.3rd 1329,1330, 917 N.Y.S.2d 759 (2011); Swergold v. Cuomo. 70 A.D.3rd at 1293, 896 N.Y.S.2d 495". (F) Koultukis v. Phillip, et al., 728 N.Y.2d A.D.2d 433 (2001). In this First Department case the lower court granted an injunction sought by the owner and manager of the building in a third party action against the tenant. Upon appeal, the Appellate Division reversed the lower court's decision and vacated the injunction. The court's decision made the following pertinent statement "tenants and managers of building were required to exhaust administrative remedy before commencing court challenge to City Department ofbuilding's commencement orproceeding to padlock portion of building used as chiropractor office. allegedly in violation of zoning law, even though zoning provision was being challenged on constitutional 5 of 9

6 grounds." 9. Plaintiff requests money damages and also an injunction. The complaint in the above entitled action is completely devoid of any allegation wherein the plaintiff specifies any damages they have suffered in terms of any of the following categories: 1) They have not indicated that they have received violations from any governmental agency or municipal department. 2) There have been no allegations that the plaintiffs have been required to pay or that fines or penalties were levied against the plaintiff. 3) There is no allegation that the plaintiffs have needed to defend any claims or actions commenced against them by any governmental agencies or by individual condominium unit owners of a residential unit in the condominium. 4) There have been no specific allegations that claims or legal actions have been brought against the condominium by third parties including neighboring property owners which the plaintiffs had been required to defend. 5) Plaintiffs have not indicated that the operations of Park Right have resulted in any specific property damages to the condominium. 10. It is respectfully submitted that in sum total as to damages what the complaintsets forth are a lot of conclusory allegations without any specifics as to actual damages suffered by the condominium by the Tribecca Summit Condominium. As to the plaintiffs action for declaratory judgment, the court is directed to the case of Dekdebrun v. Hardt, 417 N.Y.S.2d 331, 68 A.D.2d 241 (1979) wherein in holding that a declaratory judgment action did not appropriately lie in the case the court, stated in pertinent part in its decision as follows: "Further, it is required that in orderfor a proper declaratory judgment action to lie, a person instituting it must have a legal protectable interest so that his rights are directly in issue, i.e. There must be a genuine dispute, an actual or"justiciable controversy" (CPLR 3001)" 11. It is respectfully submitted thatin this particular case, there is no legal action or justiciable direct controversy between Park Right and the board of managers of Tribeca 6 of 9

7 Summit Condominium. The violations alleged in the complaint against Park Right are issues and controversies to be handled and enforced by the various governmental agencies empowered to enforce such issues, issue violations and/or suspend the operating permit or licenses issued to Park Right. 12. What is more is that the plaintiffs have failed to allege facts in the complaint that would entitle them to any permanent injunction. In this regard, the court's attention is directed to the case of Koultukis v. Phillips. 728 N.Y.S.2d A.D.2d 433 (2001) wherein the Appellate Division First Department vacated in injunction issued by the lower court and stated as part of its decision as follows: "what is wrong on the merits the movants failed to demonstrate a right to the injunctive relief they were granted. Preliminary injunctive relief is a drastic remedy and will only be granted if the moving establishes a clear right to it under the law and the undisputed facts found in the moving papers (see Anastasi v. Maioton Realty Corp. 181 A.D. 2d N.Y.S.2d 223. The movant must establish: 1) a likelihood of ultimate success on the merits, 2) a reputable injury absence of granting of the preliminary injunction, and 3) that a balance of equities favors the movant's position (see, Jrant Company v. Srogi. 52 N.Y.2d N.Y.S.2d 761, 420 N.E.2d 953)." 13. It is respectfully submitted, that the plaintiffs have failed completely to meet the necessary requirements to beentitled to injunctive relief. No specific facts have been set forth in the complaint. What is set forth is astatement that the garage operations ofpark Right are allegedly in violation of an existing zoning resolution, of the currently existing certificate ofoccupancy and ofcertain noise code violations governed by the New York City Department of Environmental Conservation. These are all general allegations without any specific facts to establish that an actual violation has been issued by any governmental agency to either Park Right or to the plaintiff. 14. It should also be again emphasized that the by-laws of the condominium directly govern the relationship of the board ofmanagers of the condominium with condominium unit owners. In this case, the only condominium unit owner named in the complaint as a 7 of 9

8 defendant is 415 PR LLC which is the owner of the commercial condominium leased to Park Right for the operation of the garage. 15. Now based upon the aforesaid facts, it is respectfully submitted that the complaint herein should be dismissed pursuant to the provisions of 3211(a)(2); Section 3211(a)(3) and Section 3211(a)(7). 16. This affirmant must also point out that should the court grant the injunction requested in the complaint herein, it would temporarily and/or permanently put the defendant Park Right out of business. In such an event, it is respectfully submitted that the plaintiff should be required to give an undertaking as required under CPLR Rule 6312(b) which states as follows: "Prior to the grantingof a preliminary injunction, the plaintiffwill give an undertaking in an amount to be fixed by the court, that the plaintiff, if it is finally determined that he or she was not entitled to an injunction, will pay to the defendant all damages and costs which may be sustained by reason of the injunction..." It is further brought to the attention of the Court that the damages that would be suffered by Park Right would be substantial and thus the required undertaking would need to be a substantial amount. 17. There are a number of additional surrounding facts which this affirmant would seek to bring to the attention of the Court. 18. Firstly, Park Right operates the garage at 415 Greenwich Street pursuant to a properly and validity issued license from the New York City Department of Consumers Affairs which specifically permits the garage to accommodate 72 vehicles and seven bicycles. A copy of said license issued to Park Right by the New York City Department of Consumer Affairs is annexed hereto as Exhibit A. 19. It must be further pointed out to the Court that the primary instigator for the above entitled action was the President of the Condominium Board of Managers, Ms. Christin Kohls; who, in fact, signed the verification annexed to the complaint in the above entitled action. 20. Ms. Kohls is at this time being sued by ParkRight for a monthly garage maintenance fees in a civil court action. The attorney representing Ms. Kohls brought on a motion for 8 8 of 9

9 summary judgment which was denied on April 15, 2016 by a decision of Honorable Judge Erica M. Edwards. Thereafter, the attorney representing Ms. Kohls filed a Notice of Appeal. That Notice of Appeal was recently withdrawn by her attorney since her attorney had failed to perfect the notice of appeal within the time required. A copy of the decision of the case referred to and the notice of appeal filed by her attorney is annexed hereto as Exhibit B. 21. Upon information and belief, the reason why Ms. Kohls is believed to have been the primary mover and instigator behind the commencement of the above-entitled action involved an ulterior motive on her part to retaliate against ParkRight for the currently pending civil court action wherein Park Right is suing Ms.Kohls for past due monthly garage maintenance fees. 22. That based upon the above facts and the exhibits annexed hereto and the supporting affidavit of Moshe Izadi, President of Park Right, it is respectfully requested that the Court issue an order dismissing the complaint in the above-entitled action as against Park Right pursuant to the provisions of CPLR Sections 3211(a)(2), 3211(a)(3) and 3211(a)(7) and further granting Park Right the costs of this motion along with such other and further relief as the Court may deem just and proper. 23. That no prior application for the relief requested herein has been made to this court or any other court of competent jurisdiction. DATED: New York, New York July 19, 2016 PERRY BURKETT Attorney for Plaintiff-Respondent Park Right Corp th Avenue New York, New York (212) of 9