FILED: NEW YORK COUNTY CLERK 04/09/2013 INDEX NO. 153197/2013 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 04/09/2013 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------------- X DAVID and EILEEN EISBROUCH Plaintiffs, Index No. Date Filed: - against - SUMMONS TWO EAST END AVENUE APARTMENT CORPORATION and TUVIA FELDMAN Defendants. --------------------------------------------------------------------- X To the above named Defendants: Tuvia Feldman Two East End Avenue Apartment Corporation Two East End Avenue, Penthouse A & B Two East End Avenue New York, New York, 10075 New York, New York, 10075 YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of appearance, on the Plaintiff's Attorney(s) within 20 days after the service of this summons, exclusive of the day of service (or within 30 days after the service is complete if this summons is not personally delivered to you within the State of New York). YOU ARE HEREBY NOTIFIED THAT should you fail to answer, a judgment will be taken against you by default for the relief demanded in the complaint, and in no event less than Three Hundred and Fifty Thousand Dollars ($350,000.00). VENUE: Plaintiff designates New York County as the place of trial. The basis of venue is that the Plaintiffs and Defendant Feldman reside at Two East End Avenue, New York, New York 10075, and Defendant Two East End Avenue Apartment Corporation does business at Two East End Avenue, New York, New York. Dated: New York, New York April 8, 2013 THE LANIER LAW FIRM, PLLC Evan M. Janush, Esq. Attorneys for Plaintiffs 126 East 56 th Street, 6 th Floor New York, New York 10022 T: 212-421-2800 ext.180 F: 917-546-0580
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------------- X DAVID and EILEEN EISBROUCH Plaintiffs, Index No. - against - VERIFIED COMPLAINT TWO EAST END AVENUE APARTMENT CORPORATION and TUVIA FELDMAN JURY TRIAL DEMANDED Defendants. --------------------------------------------------------------------- X TO THE SUPREME COURT OF THE STATE OF NEW YORK Plaintiffs, David and Eileen Eisbrouch (hereinafter Plaintiffs ), by their attorneys, Evan M. Janush of The Lanier Law Firm, PLLC, complain of the defendants Two East End Avenue Apartment Corporation (hereinafter, Defendant Apartment Corporation ) and Tuvia Feldman (hereinafter, Defendant Feldman ), as follows: THE PARTIES 1. On May 13, 2010, Plaintiffs became assignees of a Proprietary Lease entered into between Defendant Apartment Corporation and Evan Mittman on April 29, 1999, concerning unit 7A, located at Two East End Avenue, New York, New York, 10075 (hereinafter, Unit 7A or Premises ). 2. At all times hereinafter mentioned, Plaintiffs were proprietary lessees of Unit 7A. 3. At all times hereinafter mentioned, Defendant Apartment Corporation, which maintains its principal place of business at Two East End Avenue, New York, New York, 10075, was the lessor 1
of the Premises. 4. At all times hereinafter mentioned, Defendant Feldman was a proprietary lessee of Two East End Avenue, Penthouse A&B, New York, New York, 10075, residing in a multi-level penthouse apartment, occupying floors 8, 9 and 10, located directly above Plaintiffs unit. VENUE 5. Venue is appropriate in New York County. The Plaintiffs reside in New York County, Defendant Feldman resides in New York County, Defendant Apartment Corporation does business in New York County, and all acts forming the basis of the lawsuit occurred in New York County. ACTUAL ALLEGATIONS COMMON TO ALL CAUSES OF ACTION 6. On January 7, 2012, Defendant Feldman owned and operated two antique lamps, dating back to the 1950 s, within his penthouse unit located at Two East End Avenue, New York, New York. 7. On January 7, 2012, after two antique lamps were turned on within the living room of Defendant Feldman s unit, Defendant Feldman and his girlfriend vacated the unit for multiple hours to attend the movies, thereby leaving the antique lamps powered on and unattended. 8. Defendant Feldman s antique lamps caused an electrical fire within Defendant Feldman s unit. 9. Upon information and belief, the leading area that first combusted was the wire insulation utilized within the antique lamps. 10. Upon information and belief, Defendant Feldman s antique lamps caused a short circuit arc which arises from defective and worn electrical wire insulation. 2
11. The fire that resulted from Defendant Feldman s unattended antique lamps was not detected by any smoke detector device in Defendant Feldman s unit. 12. Upon information and belief, Defendant Feldman failed to maintain an operable smoke detection device in his unit, as required by New York City s Administrative Code at 27-2045(b)(1)-(2). 13. Upon information and belief, Defendant Feldman did not have a functioning battery in his unit s smoke detection device. 14. The absence of an operable smoke detector device in Defendant Feldman s unit permitted Defendant Feldman s unit fire to burn for an excessive period of time and without notice to neighbors of Defendant Feldman. 15. The fire in Defendant Feldman s unit was not noticed until it burned to a location in the Defendant s unit, thus allowing its detection by a doorman located in another building across the street, thereby enabling the doorman (and other outside witnesses) to dial 911 and report the existence of the fire. 16. On January 7, 2012, at approximately 7:51 p.m., the New York City Fire Department arrived at the premises of Defendant Apartment Corporation. 17. Upon entering the building, the firefighters attempted to enter an elevator in the lobby of Two East End Avenue, in order to utilize the fire service. 18. On or before January 7, 2012, Defendant Apartment Corporation failed to properly maintain its elevators, including the fire service functionality of its elevators. 19. On January 7, 2012, when the New York City Fire Department arrived at Two East End Avenue to search for and extinguish the fire in Defendant Feldman s unit, the Defendant 3
Apartment Corporation s fire service elevator function was inoperable. 20. According to the incident report issued by the FDNY s Bureau of Fire Inspection, upon the arrival of firefighters at the scene, the fireman service for the elevator was not working and the building management was panicking. 21. Because the fire service elevator function was inoperable, the firefighters were forced to walk up 8 floors of stairs with all of their equipment. 22. Because the fire service elevator function was inoperable, the firefighters took minutes to get to Defendant Feldman s front door on the 8th floor, rather than the seconds it would have otherwise taken the firefighters to reach the 8th floor if the fire service elevator was operable. 23. The fire burned longer than it otherwise should have burned because of Defendant Feldman s failure to maintain operable smoke detection devices, and because of Defendant Apartment Corporation s failure to maintain an operable fire service elevator. 24. The longer that the fire burned, the greater the fire spread within Defendant Feldman s unit. 25. The length of time that Defendant Feldman s fire was permitted to burn undetected, enabled the fire to burn from the 8th floor living room, all four walls, ceilings and contents, up into the 9th floor dining room, and all four walls and contents of Defendant Feldman s unit. 26. The greater the fire spread within Defendant Feldman s unit, the greater the volume of water was required to extinguish the fire. 27. The water that was required by the firefighters to extinguish the fire caused extensive damage to Plaintiffs unit located directly below Defendant Feldman s unit. 28. The floor, walls and ceilings, as well as a substantial portion of the Plaintiffs apartment in 4
Unit 7A, including the entire kitchen and master bathroom, were damaged during the subject fire. 29. After the subject fire occurred, Defendant Apartment Corporation failed to take any actions to fulfill its repair obligations as set forth in the Proprietary Lease at Paragraph 4.(a). 30. Plaintiffs own insurer tendered the Plaintiffs policy limits, in the amount of $250,000.00, to provide some recompense for Plaintiffs. Plaintiffs damages far exceed the insurance proceeds that they have received. AS AND FOR A FIRST CAUSE OF ACTION AGAINST DEFENDANT FELDMAN Negligence Concerning the Unattended and Defective Antique Lamps 31. Plaintiffs repeat and incorporate all prior pleadings as if fully set forth herein. 32. On January 7, 2012, Defendant Feldman owned and operated two antique lamps within Defendant Feldman s unit. 33. Upon information and belief, on January 7, 2012, Defendant Feldman owned and operated antique lamps that were defectively wired. 34. On January 7, 2012, Defendant Feldman turned on each of the two antique lamps, vacated his apartment for multiple hours, and left the unattended antique lamps powered on. 35. Given the antique nature of Defendant Feldman s lamps, the antique lamps should have been inspected and properly wired and insulated in order to prevent an electrical fire. 36. Given the antique nature of Defendant Feldman s lamps, Defendant Feldman should have installed an arc-fault circuit-interrupter in his living room where the antique lamps were utilized in order to prevent the risk of an electrical fire. 37. Given the nature of Defendant s antique lamps, it was unreasonably dangerous for Defendant Feldman to turn two antique lamps on, vacate the premises for multiple hours, and leave 5
his antique lamps unattended. 38. On January 7, 2012, Defendant Feldman s unattended antique lamps caused an electrical fire. 39. Plaintiffs were damaged as a result of Defendant Feldman s negligent maintenance of defectively wired antique lamps. 40. Plaintiffs were also damaged as a result of Defendant Feldman s other acts of negligence, including Defendant s unreasonably dangerous actions consisting of powering on two antique lamps and vacating his unit for multiple hours with the lamps left on and unattended. AS AND FOR A SECOND CAUSE OF ACTION AGAINST DEFENDANT FELDMAN Res Ipsa Loquitor 41. Lamps that are powered on in a living room of an apartment do not ordinarily start an electrical fire in the absence of negligence. 42. Defendant Feldman s antique lamps, including the allegedly defective wiring of said lamps, were exclusively in the control of Defendant Feldman on January 7, 2012. 43. One or both of Defendant Feldman s antique lamps initiated an electrical fire in Defendant Feldman s unit on January 7, 2012. 44. The fire that occurred in Defendant Feldman s unit on January 7, 2012 was not due to any voluntary action or contribution by the Plaintiffs. 45. Defendant Feldman s antique lamps spawned an electrical fire which damaged the Plaintiffs. 6
AS AND FOR A THIRD CAUSE OF ACTION AGAINST DEFENDANT FELDMAN Negligence Concerning Defendant s Failure to Maintain Functional Smoke Detector Devices 46. Plaintiffs repeat and incorporate all prior pleadings as if fully set forth herein. 47. Pursuant to New York City s Administrative Code at 27-2045(b)(1)(2) and the Rules of the City of New York, Title 28, entitled, Housing Preservation and Development, Defendant Feldman was required to abide by Occupant Responsibilities for Smoke Detecting Devices for Class A Multiple Dwellings. 48. On January 7, 2012, Defendant Feldman was an occupant of a class A multiple dwelling as defined by New York City s Administrative Code at 27-2004[8](a). 49. New York City s Administrative Code at 27-2045(b)(1)-(2) provides: (b)... it shall be the sole duty of the occupant of each unit in a Class A multiple dwelling in which a smoke detecting device has been provided and installed by the owner to: (1) keep and maintain such device in good repair; and (2) replace any and all devices which are either stolen, removed, missing or rendered inoperable during the occupancy of such dwelling unit. 50. On January 7, 2012, Defendant Feldman breached New York City s Administrative Code at 27-2045(b)(1), by failing to keep and maintain such device in good repair as of January 7, 2012. 51. On January 7, 2012, Defendant Feldman breached New York City s Administrative Code at 27-2045(b)(2), by failing to replace any and all smoke detecting devices that were rendered inoperable during Defendant Feldman s occupancy of his dwelling unit as of such date. 52. Defendant Feldman s failure to maintain an operable smoke detection device was a violation of New York s Administrative Code at 27-2045(b)(1)-(2) and the Rules of the City of 7
New York at 12-02. 53. Defendant Feldman should have foreseen that by failing to maintain an operable smoke detection device in violation of New York s Administrative Code at 27-2045(b)(1)-(2) and the Rules of the City of New York at 12-02, if a fire started within Defendant Feldman s dwelling, the fire could burn undetected for a significant period of time. 54. Defendant Feldman s failure to maintain an operable smoke detection device was the proximate cause of permitting a fire in Defendant Feldman s unit to burn far longer, and result in a larger fire, than would have otherwise occurred if a functional smoke detection device was maintained by Defendant Feldman. 55. Plaintiffs were damaged as a result of Defendant Feldman s negligent lack of maintenance of the smoke detection device within Defendant Feldman s unit. AS AND FOR A FOURTH CAUSE OF ACTION AGAINST DEFENDANT FELDMAN Defendant Feldman Committed Negligence Per Se By Violating New York s Administrative Code at 27-2045(b)(1)-(2) and the Rules of the City of New York at Title 28, 12-02 56. Plaintiffs repeat and incorporate all prior pleadings as if fully set forth herein. 57. Defendant Feldman s violation of New York s Administrative Code at 27-2045(b)(1)-(2) and the Rules of the City of New York at Title 28, 12-02, requires a finding that Defendant Feldman Committed negligence per se. 58. Plaintiffs were damaged as a result of Defendant Feldman s negligence per se. 8
AS AND FOR A FIFTH CAUSE OF ACTION AGAINST DEFENDANT APARTMENT CORPORATION Negligence Concerning Defendant s Failure to Maintain Fire Service Elevator 59. Plaintiffs repeat and incorporate all prior pleadings as if fully set forth herein. 60. Defendant Apartment Corporation was required to maintain a fire service elevator in good working order on January 7, 2012. 61. Pursuant to the Rules of the City of New York at Chapter 30, Elevators and Conveying Systems, 3001.2 Referenced Standards, New York City adopted the ASME s Code requirements for Elevator Safety in North America concerning Phase I and II Firefighters Emergency Operation of elevators promulgated as ASME A17.1, A17.2, A17.5, ANSI A10.5, ASME QEI-1, ASME A90.1, and ASME B20.1 (hereinafter, the ASME Elevator Safety Code ). 62. All New York City high-rise buildings are required to abide by the ASME Elevator Safety Code. 63. The ASME Elevator Safety Code sets forth the Purpose of the code at ASME A17.1 1.2.1, stating, [t]he purpose of this Code is to provide for the safety of life and limb, and to promote the public welfare. 64. The ASME Elevator Safety Code at ASME A17.1 2.27.3.3 requires that elevators function in Phase II Emergency In-Car Operation. 65. Pursuant to ASME A17.1 at 2.27.3.3.1, When the FIRE OPERATION switch is in the ON position, the elevator shall be on Phase II Emergency In-Car Operation, for use by emergency personnel only.... 66. Compliance with the ASME Elevator Safety Code requires that an elevator has a fire service functionality that permits firefighters to utilize the elevator during a fire emergency and 9
continue nonstop to the designated level. 67. On January 7, 2012, Defendant Apartment Corporation failed to maintain a fire service elevator in good working order. 68. As a result of Defendant Apartment Corporation s failure to maintain a fire service elevator in good working order on January 7, 2012, when a fire occurred within Defendant Feldman s unit, the firefighters from the New York City Fire Department were not able to utilize Defendant Apartment Corporation s fire service elevator, which caused a significant delay in extinguishing the subject fire. 69. It was unreasonable for Defendant Apartment Corporation to fail to maintain a fire service elevator in good working condition on January 7, 2012. 70. The Defendant Apartment Corporation s failure to maintain a fire service elevator in good working condition on January 7, 2012, was a proximate cause of delaying the extinguishment of Defendant Feldman s fire, and actually permitted the fire to grow during the time that the firefighters were required to walk up 8 flights of stairs to get to Defendant Feldman s unit. 71. Upon information and belief, significantly more water was required to extinguish the fire than would have otherwise been required if the fire was reached by the firefighters minutes earlier. 72. Plaintiffs apartment was damaged by the extensive amount of water required to extinguish Defendant Feldman s fire, arising from the Apartment Corporation s negligent failure to maintain an operable fire service elevator on January 7, 2012. 10
AS AND FOR A SIXTH CAUSE OF ACTION AGAINST DEFENDANT APARTMENT CORPORATION Negligence Per Se Arising from Defendant Apartment Corporation s Failure to Maintain Fire Service Elevator 73. Plaintiffs repeat and incorporate all prior pleadings as if fully set forth herein. 74. Pursuant to the Rules of the City of New York at Chapter 30, Elevators and Conveying Systems, 3001.2 Referenced Standards, New York City adopted the ASME s Code requirements for Elevator Safety in North America concerning Phase I and II Firefighters Emergency Operation of elevators promulgated as ASME A17.1, A17.2, A17.5, ANSI A10.5, ASME QEI-1, ASME A90.1, and ASME B20.1. 75. The Rules of the City of New York, which incorporate ASME s Elevator Safety Code set forth requirements for the operation of elevators during a fire emergency, and provide for the foreseeable operation of the fire service elevator functionality by firefighters during an emergency. 76. On January 7, 2012, Defendant Apartment Corporation committed per se negligence by failing to maintain a fire service elevator in good working condition pursuant to Rules of the City of New York at Chapter 30, Elevators and Conveying Systems, 3001.2; ASME A17, generally; and ASME A17.1 at 2.27.3.3. 77. Plaintiff was damaged as a result of Defendant Apartment Corporation s negligence per se, including, specifically, by Defendant Apartment Corporation s failure maintain a fire service elevator in good working condition on January 7, 2012, pursuant to Rules of the City of New York at Chapter 30, Elevators and Conveying Systems, 3001.2; ASME A17, generally; and ASME A17.1 at 2.27.3.3. 11
AS AND FOR A SEVENTH CAUSE OF ACTION AGAINST DEFENDANT APARTMENT CORPORATION Negligence Concerning Defendant Apartment Corporation s Failure to Ensure that Defendant Feldman s Unit Contained the Proper Number of Smoke Detectors and the Proper Placement of Smoke Detectors Pursuant to Code Requirements 78. Plaintiffs repeat and incorporate all prior pleadings as if fully set forth herein. 79. Defendant Apartment Corporation was required to ensure that Defendant Feldman s unit included the appropriate amount of smoke detector devices, as required by Reference Standard 17-12 of the New York City Administrative Code. 80. Pursuant to New York City s Reference Standard 17-12 at 2-1.1.1, Smoke detectors shall be installed outside each separate sleeping area in the immediate vicinity of the bedrooms in dwelling units, in Occupancy Groups J-2 and J-3.... 81. Pursuant to New York City s Reference Standard 17-12 at 5-2.1.6, Smoke detectors shall be located on or near the ceiling, and within fifteen feet of all rooms used for sleeping purposes in J-2 or J-3 occupancies. In all dwelling units, with multiple levels, when any level has only one means of egress, the dwelling unit shall be provided with smoke detectors on all levels. 82. Defendant Feldman s unit is considered an Occupancy Group J-2 unit, as defined by New York City Administrative Code at 27-265. 83. Upon information and belief, Defendant Apartment Corporation breached New York City s Reference Standard RS 17-12, at provisions 2-1.1.1 and 5-2.1.6, by failing to ensure that Defendant Feldman s unit had the proper number of smoke detector devices, and by failing to ensure that Defendant Feldman s unit had smoke detector devices installed in the locations required by RS 17-12. 84. As confirmed by the investigation conducted by the FDNY s Bureau of Fire Investigation 12
concerning the subject fire, only one smoke detector existed on the 8th floor of Defendant Feldman s unit. 85. Upon information and belief, as of January 7, 2012, Defendant Apartment Corporation failed to ensure that Defendant Feldman s unit maintained both the proper number of smoke detection devices and the proper placement of smoke detection devices, as required by New York City s Reference Standard 17-12. 86. Upon information and belief, as of January 7, 2012, Defendant Apartment Corporation failed to ensure that Defendant Feldman s unit maintained the proper number of smoke detection devices in the specified physical locations that are required by New York City s Reference Standard 17-12. 87. Upon information and belief, the Defendant Apartment Corporation is responsible for Defendant Feldman s failure to maintain the proper number of required smoke detection devices, as required by New York City s Reference Standard 17-12. 88. Upon information and belief, the Defendant Apartment Corporation is responsible for Defendant Feldman s failure to maintain smoke detection devices in the specific locations required by New York City s Reference Standard 17-12. 89. Upon information and belief, the failure to maintain the proper number and placement of smoke detection devices in Defendant Feldman s unit was a proximate cause in permitting the fire to burn undetected for an unnecessarily long period of time, thus causing damage to the Plaintiffs. 90. Plaintiffs have been damaged by Defendant Apartment Corporation s failure to ensure that Defendant Feldman s unit contained the proper number of smoke detectors and the proper placement of smoke detectors, as required by Reference Standard 17-12 of the New York City 13
Administrative Code. AS AND FOR AN EIGHTH CAUSE OF ACTION AGAINST DEFENDANT APARTMENT CORPORATION Defendant Apartment Corporation s Negligence Concerning Its Failure to Fulfill The Rules of the City of New York at Title 28, 12-01, Owner Responsibilities for Smoke Detecting Devices for Class A Multiple Dwellings 91. Pursuant to the Rules of the City of New York at Title 28, 12-01 (f), Defendant Apartment Corporation was required to keep the following records, on the premises unless specifically exempted, relating to the installation and maintenance of smoke detection devices in the building: (1) date notice posted pursuant to 12-01(b) of this chapter; (2) date of installation of each smoke detecting device; (3) whether the smoke detecting device receives its primary power from the building wiring or whether it is a battery-operated device; (4) apartment number and location within apartment where device installed; (5) date device tested to see if it is in operable condition; (6) maintenance work performed on device; (7) date tenant requested replacement/repair; (8) file a certification of satisfactory installation within 10 days after completion with the Department of Housing Preservation and Development, Borough Division of Code Enforcement. This certification shall be set forth on a form available at the HPD Borough Office. (Emphasis added). 92. Upon information and belief, Defendant Apartment Corporation failed to carry out the obligations imposed on it by the Rules of the City of New York at Title 28, 12-01(f), and thereby failed to ensure that Defendant Feldman s smoke detector device was in operable condition as of January 7, 2012. 93. Defendant Apartment Corporation acted unreasonably by failing to fulfill the obligations imposed by the Rules of the City of New York at Title 28, 12-01(f). 14
94. Defendant Apartment Corporation was negligent for failing to fulfill its owner obligations contained within the Rules of the City of New York at Title 28, 12-01(f). 95. Plaintiff was damaged as a result of Defendant Feldman s inoperable smoke detector device. AS AND FOR A NINTH CAUSE OF ACTION AGAINST DEFENDANT APARTMENT CORPORATION Negligence Per Se Arising from Defendant Apartment Corporation s Failure to Fulfill The Rules of the City of New York at Title 28, 12-01, Owner Responsibilities for Smoke Detecting Devices for Class A Multiple Dwellings 96. Pursuant to the Rules of the City of New York at Title 28, 12-01 (f), Defendant Apartment Corporation was required to keep the following records, on the premises unless specifically exempted, relating to the installation and maintenance of smoke detection devices in the building: (1) date notice posted pursuant to 12-01(b) of this chapter; (2) date of installation of each smoke detecting device; (3) whether the smoke detecting device receives its primary power from the building wiring or whether it is a battery-operated device; (4) apartment number and location within apartment where device installed; (5) date device tested to see if it is in operable condition; (6) maintenance work performed on device; (7) date tenant requested replacement/repair; (8) file a certification of satisfactory installation within 10 days after completion with the Department of Housing Preservation and Development, Borough Division of Code Enforcement. This certification shall be set forth on a form available at the HPD Borough Office. (Emphasis added). 97. Upon information and belief, Defendant Apartment Corporation failed to carry out the obligations imposed on it by 12-01(f), and thereby failed to ensure that Defendant Feldman s smoke detector device was in operable condition as of January 7, 2012. 15
98. The Rules of the City of New York at Title 28, and the obligations imposed on Defendant Apartment Corporation as an owner pursuant to 12-01(f) therein, exist to protect tenants in buildings such as Two East End Avenue. 99. Defendant Apartment Corporation s failure to carry out the obligations imposed on it by the Rules of the City of New York, Title 28 at 12-01(f), requires a finding that Defendant Apartment Corporation committed negligence per se. 100. Plaintiff was damaged as a result of Defendant Apartment Corporation s negligence per se, including, specifically, Defendant Apartment Corporation s failure to carry out the obligations imposed on it by the Rules of the City of New York, Title 28 at 12-01(f). AS AND FOR A TENTH CAUSE OF ACTION AGAINST DEFENDANT APARTMENT CORPORATION Breach of Contract Concerning Proprietary Lease Paragraph 4.(a) 101. Plaintiffs repeat and incorporate all prior pleadings as if fully set forth herein. 102. Plaintiffs are assignees to a Proprietary Lease entered into with the Defendant Apartment Corporation. 103. Paragraph 4.(a) of the Proprietary Lease states: If the apartment or the means of access thereto or the building shall be damaged by fire or other cause covered by multi-peril policies commonly carried by cooperative corporations in New York City (any other damage to be repaired by Lessor or Lessee pursuant to Paragraphs 2 and 18, as the case may be), the Lessor shall at its own cost and expense, with reasonable dispatch after receipt of notice of said damage, repair or replace or cause to be repaired or replaced, with materials of a kind and quality then customary in buildings of the type of the building, the building, the apartment, and the means of 16
access thereto, including the walls, floors, ceilings, pipes, wiring and conduits in the apartment.... Proprietary Lease at 4.(a) (emphasis added). 104. Defendant Apartment Corporation breached Paragraph 4.(a) of the Proprietary Lease by failing, with reasonable dispatch after receipt of notice of said damage, to repair or replace the walls, floors and ceilings and wiring of Plaintiffs apartment. 105. After Plaintiffs unit suffered extensive water damage arising from the subject fire, the Defendant Apartment Corporation failed to take any action to remediate Plaintiffs unit. Specifically, Defendant Apartment Corporation failed to hire an architect to have plans drawn up for the repair of the unit, and failed to otherwise propose any plan to perform its contractually obligated Proprietary Lease repair obligations. 106. After Plaintiffs unit suffered extensive water damage arising from the subject fire, no member of Defendant Apartment Corporation s Board of Directors, no architect, no consultant and/or no managing agent has entered Plaintiffs unit since January 7, 2012, thus requiring Plaintiffs to mitigate their damages in order to make their unit habitable, and to fulfill the Defendant Apartment Corporation s Proprietary Lease obligations contained at Paragraph 4.(a). 107. After the subject fire, Defendant Apartment Corporation never even requested access into Plaintiffs unit. 108. After the subject fire, Plaintiffs never refused Defendant Apartment Corporation access to their unit in order to permit Defendant Apartment Corporation to fulfill their Proprietary Lease obligations. 109. Aside from failing to fulfill its repair obligations pursuant to Paragraph 4.(a) of the Proprietary Lease, after the subject fire of January 7, 2012, and for a period of more than one 17
year, which has continued through the filing of this Complaint, Defendant Apartment Corporation has failed to even make any payment to Plaintiffs concerning the repairs Plaintiffs were required to make in mitigating the Defendant s breach of the Proprietary Lease at Paragraph 4.(a). 110. On January 16, 2013, the Defendant Apartment Corporation offered to pay $27,466.98 to Plaintiffs to fully settle any and all claims relating to the Corporation s liability purportedly related to the Proprietary Lease at Paragraph 4.(a). 111. The Defendant Apartment Corporation has issued a narrow construction of the Work it is required to pay for arising out of its Proprietary Lease obligations. In doing so, the Defendant Apartment Corporation has defined the reimbursable Work as consisting of the repair of the fire damage to the [Shareholder s] Unit s flooring and sheetrock. 112. Plaintiffs allege that the Defendant Apartment Corporation is liable for Proprietary Lease repairs far in excess of the $27,466.98 that Defendant has offered to pay the Plaintiffs. 113. Despite owing significant sums of money to Plaintiffs for stale contractual obligations contained at Paragraph 4.(a) of the Proprietary Lease, Defendant Apartment Corporation has acted in bad faith by seeking to require that Plaintiffs execute a release in exchange for the Defendant s payment otherwise required by the stale provision in the Proprietary Lease. The release that Defendant Apartment Corporation has demanded to be executed by Plaintiffs would release any cause of action against any Board Member of Defendant Apartment Corporation, its Board being comprised of individuals including the alleged individual tortfeasor in this action, Defendant Feldman. 114. Defendant Apartment Corporation has additionally demonstrated its bad faith breach of 18
contract by demanding a release from the Plaintiffs concerning Defendant s Proprietary Lease obligations, while failing to provide any additional consideration to the Plaintiffs in exchange for the requested release. 115. Defendant Apartment Corporation has required Plaintiffs to execute a release in exchange for a payment that was long ago required to be made pursuant to the unambiguous terms of the Proprietary Lease. 116. The Proprietary Lease nowhere requires the execution of a Release in exchange for the repairs and/or payment required by Paragraph 4.(a) of the Proprietary Lease. 117. The Defendant Apartment Corporation s demand for a Release in exchange for the repairs and/or payment required by Paragraph 4.(a) of the Proprietary Lease necessarily must be viewed as a requested modification of the terms of the Proprietary Lease. 118. Defendant Apartment Corporation s demand for a release of claims in exchange for the repairs and/or payment required by Paragraph 4.(a) of the Proprietary Lease, amounts to a modification of the Proprietary Lease which is legally unsupportable in the absence of new consideration. 119. In addition to seeking to condition its Paragraph 4.(a) Proprietary Lease reimbursement payment obligation upon the execution of a release, Defendant Apartment Corporation is also seeking to provide Plaintiffs with a reimbursement payment that actually provides less consideration than Plaintiffs are otherwise entitled to by the Proprietary Lease. 120. Defendant Apartment Corporation has willfully withheld funds owed to Plaintiffs pursuant to Paragraph 4.(a) of the Proprietary Lease, and by doing so, has breached the terms of the Proprietary Lease. 19
121. Plaintiffs seek a declaratory judgment that Defendant Apartment Corporation breached its obligations to repair Plaintiffs unit in violation of Paragraph 4.(a) of the Proprietary Lease. 122. Plaintiffs have been damaged by Defendant Apartment Corporation s breach of contract in an amount to be determined at trial. AS AND FOR AN ELEVENTH CAUSE OF ACTION AGAINST DEFENDANT APARTMENT CORPORATION Breach of Contract Concerning Proprietary Lease Paragraph 4.(b) 123. Plaintiffs repeat and incorporate all prior pleadings as if fully set forth herein. 124. Pursuant to Paragraph 4.(b) of the Proprietary Lease, [i]n case the damage resulting from fire or other cause shall be so extensive as to render the apartment partly or wholly untentantable, or if the means of access thereto shall be destroyed the rent hereunder shall proportionately abate until the apartment shall again be rendered wholly tenantable or the means of access restored.... 125. Plaintiffs unit was rendered untenantable up until February 5, 2013. 126. Despite the untenantable state of Plaintiffs unit, Defendant Apartment Corporation prematurely and improperly began assessing maintenance charges to Plaintiffs as of December 1, 2012, amounting to more than $12,000.00 in improper assessments. 127. Defendant Apartment Corporation wrongfully withheld its repairs and/or payments owed to Plaintiffs concerning its Proprietary Lease obligations contained at Paragraph 4(a), and, while doing so, began assessing monthly maintenance fees to the Plaintiffs at a time that the repairs to Plaintiffs unit remained uncompleted. 128. Defendant Apartment Corporation has breached Paragraph 4.(b) of the Proprietary Lease by charging Plaintiffs maintenance during a period of time that the Plaintiffs unit was untenantable. 20
129. Plaintiffs have been damaged by Defendant Apartment Corporation s breach of contract in an amount to be determined at trial. WHEREFORE, Plaintiff demands judgment against Defendants in an amount to be determined at trial, plus interest, reasonable attorneys fees, court costs, disbursements and litigation expenses, together with such other and further relief as to this Court may seem just and proper, but in no event less than $350,000.00. Dated: New York, New York April 8, 2013 Yours etc., THE LANIER LAW FIRM, PLLC Evan M. Janush, Esq. Attorneys for Plaintiffs 126 East 56 th Street, 6 th Floor New York, New York 10022 T: 212-421-2800 ext.180 F: 917-546-0580 21
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------------- X DAVID and EILEEN EISBROUCH Plaintiffs, Index No. - against - CERTIFICATION TWO EAST END AVENUE APARTMENT CORPORATION and TUVIA FELDMAN Defendants. --------------------------------------------------------------------- X EVAN M. JANUSH, ESQ., an attorney duly admitted to practice before the Courts of the State of New York, hereby certifies, in accordance with 22 NYCRR Part 130-1.1-a of the Rules of the Chief Administrator, that to the best of my knowledge, information and belief, which was formed after a reasonable inquiry under the circumstances, the presentation of the foregoing Summons and Verified Complaint and its contents are not frivolous, as the term is defined in Part 130. Dated: April 8, 2013 New York, New York Respectfully submitted, Evan M. Janush, Esq. THE LANIER LAW FIRM, PLLC Attorneys for Plaintiffs 126 East 56 th Street, 6 th Floor New York, New York 10022 T: 212-421-2800 ext.180 F: 917-546-0580