Opinion
Index No. 650921/2024
08-02-2024
Adam C Abrams, Plaintiff, v. The Seaview Association of Fire Island New York Inc. and THOMAS RUSKIN, Defendants.
Adam C. Abrams, plaintiff pro se. Smith, Finkelstein, Lundberg, Isler & Yakaboski, LLP, Riverhead, NY (Frank A. Isler of counsel), for defendants.
Unpublished Opinion
Adam C. Abrams, plaintiff pro se.
Smith, Finkelstein, Lundberg, Isler & Yakaboski, LLP, Riverhead, NY (Frank A. Isler of counsel), for defendants.
Gerald Lebovits, J.
Plaintiff, Adam Abrams, is a member of defendant Seaview Association of Fire Island New York Inc. Defendant Thomas Ruskin is Seaview's president.
Plaintiff owns property at the north end of Gale Avenue in the Seaview community on Fire Island. All property owners in the Seaview community are required to be members of Seaview Association, a non-profit corporation. Plaintiff has been a Seaview Association member for at least the past six months. Ruskin has served as Seaview's president since 2015.
According to defendants, Seaview Association holds title to and maintains the streets in Seaview, including Gale Avenue. Property owners in Seaview have a deeded right to use its streets. The deed conveying streets to Seaview Association restricts it from unreasonably or unnecessarily obstructing Gale Avenue or interfering with pedestrians' enjoyment of the street. (NYSCEF No. 52; NYSCEF No. 62.) Seaview also owns a boat basin next to plaintiff's property. Seaview charges a fee for the use of the boat basin through written contract. (NSYCEF No. 113 at ¶ 30.) The boat basin fee is not part of the property-owner dues paid to Seaview.
Plaintiff's Disputes with Seaview
1. Plaintiff, Seaview, and its president, Ruskin, have had numerous disputes and disagreements over the past decade. One such dispute arose in 2012. Plaintiff sued defendants then in Supreme Court, Suffolk County, for allegedly damaging plaintiff's fences and trespassing on his property while Seaview was engaged in construction on Gale Avenue. (See Index No. 30086/2012.) The case was settled by stipulation. In 2017, plaintiff sued defendants in Supreme Court, Suffolk County, for failing to comply with the 2012 stipulation. (See Index No. 617282/2017, James F. Matthews, J.) And he brought an action in 2019 in Supreme Court, New York County, that sought to remove Ruskin as the president of Seaview. (Index No. 156413/2019, Melissa A. Crane, J.) In 2022, plaintiff and Seaview entered into a confidential settlement agreement to settle the 2017 and 2019 actions. (NYSCEF No. 1 at ¶ 11.)
Although the 2022 agreement is not before the court, both parties provide parts of the agreement in their affirmations. According to defendants, paragraph 4 (b) of the agreement requires Seaview to erect deer fences at the north end of Gale Avenue. (NYSCEF No. 117.) The paragraph specifies the location of the deer fences. As a result, an area at the north end of Gale Avenue is enclosed by the deer fences. (NYSCEF No. 95.) The paragraph does not include the purpose of the deer fences. It states that Seaview may remove the deer fences for maintenance purposes. It also requires that Seaview set up temporary fencing to prevent public or deer access to the area at the end of each workday during the maintenance period. According to plaintiff, the agreement provides that if Seaview breaches the agreement, plaintiff is entitled to recover from Seaview the cost of performing the work and obtaining the materials outlined in paragraph 4 (c) and 4 (e). (NYSCEF No. 104 at ¶ 126.)
2. Another dispute between plaintiff and defendants relates to plaintiff's application for a year-round driving permit. When plaintiff was applying for the permit, Ruskin allegedly made false statements about plaintiff's residence in Seaview to a Town of Islip public official who reviewed plaintiff's application. Ruskin also allegedly influenced Seaview employees to withdraw their sworn statements in support of plaintiff's application. Additionally, plaintiff claims that Seaview Water Company, a Seaview Association alter ego, did not give him a certificate of water service in Seaview to support his application for the permit. As a result of Ruskin's allegedly false statements and plaintiff's lack of water service certificate, the Town of Islip denied plaintiff's application.
3. According to plaintiff, Ruskin also allegedly made numerous false statements about plaintiff to other Seaview's members. On February 1, 2024, Ruskin charged plaintiff with stalking and videotaping Seaview's employees in Seaview's annual general member meeting over Zoom. Ruskin also accused plaintiff of trespassing onto Seaview's property. Ruskin allegedly made other false statements in his emails sent to Seaview's members.
4. Plaintiff claims that Seaview's employees used fixed cameras and drones around plaintiff's property to record his activities in his property. Plaintiff also claims that on August 13, 2023, his personal property was stolen due to Seaview's negligent security. On August 30, 2023, Seaview's employees allegedly removed and destroyed plaintiff's property. Plaintiff states that he witnessed the process through his door camera. Seaview later imposed a $250 fine on plaintiff for having to remove plaintiff's property. Plaintiff alleges that he wrote a check made payable to Seaview for the fine, but that Ruskin deposited this check into his personal account.
5. Plaintiff claims that he was unlawfully denied access to books and records Seaview kept. In 2019, plaintiff demanded that Seaview allow him to inspect and copy all minutes of the meetings of the board and proceedings of its members and a list of its members. He also demanded that he be allowed to inspect and copy all financial documents listed under N-PCL § 621 (e-1). (NYSCEF No. 41.) Seaview, through counsel, gave plaintiff a list of its members' contact information and the 2018 to 2019 minutes of Seaview's members' proceedings as well as Seaview's 2019 financial report.
In 2023, plaintiff made a similar demand to Seaview to inspect all minutes of meetings and proceedings after September 16, 2019, and all financial documents under N-PCL § 621 (e-1). Once again, defendants gave plaintiff a list of all members' contact information and the 2020 to 2023 minutes of the proceedings of Seaview's members as well as Seaview's budget reports from 2020 to 2024. Plaintiff claims that Seaview violated N-PCL § 621 by failing to provide all documents to which he was entitled under the statute. Plaintiff asserts that Seaview Association did not provide its financial documents listed under N-PCL § 621 (e-1) or the minutes of Seaview's board and executive committee's proceedings.
This Action
In 2024, plaintiff brought this action against defendants, asserting numerous causes of action based on the disputes described above.
On motion sequence 001, plaintiff seeks an order under Not-For-Profit Corporation Law (N-PCL) § 621 (a) and (e-1) directing Seaview to allow plaintiff to inspect various categories of documents. This request corresponds to plaintiff's second cause of action in his complaint, which alleges that Seaview violated N-PCL § 621.
On motion sequence 002, defendants move to dismiss plaintiff's complaint in its entirety. Plaintiff cross-moves to disqualify defendants' counsel, Frank Isler, Esq., for an asserted conflict of interest, and seeks leave to amend in his memorandum of law opposing dismissal.
On motion sequence 003, plaintiff seeks a preliminary injunction refraining Seaview from storing materials in the enclosed area at the north end of Gale Avenue. Plaintiff alleges that since May 9, 2024, defendants has stored construction materials in the enclosed area. (NYSCEF No. 88 at ¶ 7.) He further asserts that Seaview is planning to pave the area with the materials. (NYSCEF No. 88 at ¶ 8.) The area is currently not paved. (See NYSCEF No. 95 and NYSCEF No. 99 for photos of the area.) Plaintiff claims that the stored materials and construction obstruct public access to the enclosed area and infringe on plaintiff's property interests.
After plaintiff moved for the preliminary injunction, defendants told plaintiff in an email that the area is Seaview's property and that Seaview put materials there for storage purposes only. (NYSCEF No. 91 at ¶ 4; NYSCEF No. 92.) Defendants further demanded that plaintiff withdraw the motion or it would request a sanction against plaintiff. (NYSCEF No. 92.) Plaintiff did not withdraw the motion. Seaview cross-moves to sanction plaintiff for his assertedly frivolous preliminary-injunction request. (NYSCEF No. 117.)
On motion sequence 004, plaintiff moves to add two more causes of action to this action. (NYSCEF No. 104.) In the proposed thirteenth cause of action, plaintiff asserts that Seaview breached the 2022 agreement settling disputes between them over Seaview's alleged trespasses on plaintiff's property. (NYSCEF No. 104, at ¶ 126.) In the proposed fourteenth cause of action, plaintiff claims that Seaview breached a contract implied in fact. Plaintiff alleges that even though he paid the boat basin fee, property owner's dues, and fines to Seaview, he is still denied access to Seaview's facilities, including the boat basin. (NYSCEF No. 88 at ¶ 2; NYSCEF No. 104.)
Plaintiff's request on motion sequence 001 to inspect documents that Seaview maintained under N-PCL § 621 (a) is denied; and his request to inspect documents under N-PCL § 621 (e-1) is granted. Defendants' request for dismissal on motion sequence 002 is granted with respect to plaintiff's first, fifth, sixth, seventh, eighth, ninth, eleventh, and twelfth causes of action; and it is denied with respect to plaintiff's second, third, fourth, and tenth causes of action. Plaintiff's cross-motion to disqualify opposing counsel, and his request for leave to amend, are denied. Plaintiff's request on motion sequence 003 for preliminary injunctive relief is denied. Plaintiff's request on motion sequence 004 for leave to amend or supplement his complaint is granted in part and denied in part.
DISCUSSION
I. Plaintiff's Motion to Inspect Seaview's Books and Records (Mot Seq 001)
a. Plaintiff's Request to Inspect Documents Seaview Kept under N-PCL § 621 (a)
A non-profit corporation is required under N-PCL § 621 (a) to keep books and records of the proceedings of its members, board, and executive committee, as well as a list of its members' contact information. A member of a non-profit corporation is entitled to examine a list of its members' contact information and the minutes of the proceedings of the corporation's members under N-PCL § 621 (b). When the corporation refuses inspection, the member may apply to Supreme Court in the judicial district where the office of the corporation is located for an order directing the corporation to show cause why an inspection should not be permitted. If it appears that the applicant is qualified and entitled to the inspection, the court must compel it under N-PCL § 621 (d).
Both parties agree that Seaview is a non-profit corporation subject to N-PCL § 621. They also agree that Seaview gave plaintiff the minutes of the proceedings of Seaview's members and their contact information under N-PCL § 621 (b) in 2019 and 2023. (NYSCEF No. 2; NYSCEF No. 40.) But plaintiff claims that he is also entitled to inspect all documents Seaview keeps under N-PCL § 621 (a). Seaview contends that plaintiff's statutory rights do not include inspecting the minutes of its board and executive committees' proceedings. This court agrees with Seaview.
N-PCL § 621 (b) permits plaintiff to examine Seaview's books and records of its members' proceedings and their contact information. It does not give plaintiff a right to inspect Seaview's books and records of its board and executive-committee proceedings. Given that Seaview has provided the documents plaintiff was entitled to review under N-PCL § 621 (b), Seaview has satisfied N-PCL § 621 (b)'s requirements and is not required under the statute to afford plaintiff the chance for a further inspection.
Plaintiff might also have a common-law right to inspect the documents at issue. The common-law right of inspection is broader than the statutory right and encompasses a greater range of a corporation's books and records. (See Pokoik v 575 Realties, Inc., 143 A.D.3d 487, 488 [1st Dept 2016].) But plaintiff here alleges only that Seaview violated his statutory right of inspection under § 621 (b).
Plaintiff also seeks to inspect all minutes of proceedings of Seaview's members during Ruskin's tenure. So far, plaintiff has been given the minutes of members' proceedings from 2018 to 2023. According to Seaview, Ruskin has been Seaview's president since 2015. (NYSCEF No. 40, ¶2.) Plaintiff is therefore asking to inspect the minutes of members' proceedings from 2015 to 2018.
Supreme Court may exercise its discretion to limit inspection to those books and records that are relevant and necessary for plaintiff's purposes. (Matter of Smith v Calvary Baptist Church, 35 A.D.3d 749, 751 [2d Dept 2006].) To the extent that plaintiff is seeking to find "[d]ocuments capable of establishing wrongdoing" of Seaview during Ruskin's tenure (NYSCEF No. 49, ¶14), the minutes of members' proceedings from 2018 to 2023 are enough for the records to reveal wrongdoing if Ruskin's wrongdoing really was as prolonged as plaintiff alleges. Furthermore, given that Seaview promptly gave plaintiff the minutes of its members' proceedings in both 2019 and 2023, plaintiff can request under N-PCL § 621 (b) the minutes of the proceedings of Seaview's members prior to 2019.
Plaintiff also claims that Seaview is subject to the Freedom of Information Law (FOIL) and the Open Meetings Law. Plaintiff argues that under these laws, Seaview should make its books and records, including all documents it kept under N-PCL § 621 (a), available to the public. (See Public Officers Law §§ 87, 103.) This argument is unpersuasive. FOIL applies to governmental "agencies," including non-profit corporations that have governmental purposes and attributes of public entities. (See Public Officers Law §§ 86 [3], 87; Rumore v Board of Educ. of City School Dist. of Buffalo, 35 A.D.3d 1178, 1180 [4th Dept 2006].) Similarly, the Open Meetings Law requires disclosure of meetings of public bodies, including entities performing a governmental function on behalf of the state. (See Public Officers Law §§ 102 [2], 103.) Plaintiff has made only conclusory assertions that Seaview is subject to these laws (see NYSCEF No. 1 at ¶ 7; NYSCEF No. 49 at ¶ 12), without alleging or providing evidence that Seaview performs any governmental function or has any attribute of a public entity.
Plaintiff's request to inspect documents Seaview kept under N-PCL § 621 (a) is denied.
B. Plaintiff's Request to Inspect Documents Under N-PCL § 621 (e-1)
In addition to documents under N-PCL § 621 (a), plaintiff also seeks to examine the financial documents of Seaview under § 621 (e-1). Section 621 (e-1) permits a member of a homeowners association to review the association's financial documents upon a request to the association's governing body. Plaintiff alleges that Seaview violated this provision by not giving him relevant documents that he requested. (NYSCEF No. 9.)
Plaintiff and Seaview disagree over whether Seaview is a homeowners association for purposes of N-PCL § 621 (e-1). Seaview argues that it is not a homeowners association under General Business Law § 352-e. Plaintiff points to an online advertisement indicating that Seaview is a homeowners association. Plaintiff also shows that Seaview claims to be a "property owners association" as well as a "homeowners association" in its tax-exemption filings (Form 990) with the Internal Revenue Service from 2015 to 2021. (See NYSCEF No. 51 [copies of Form 990s].)
Seaview is precluded from arguing that it is not a homeowners association. Under the doctrine of tax estoppel, a party to a lawsuit may not contradict the factual statements it makes in signed tax files without providing any basis for doing so. (See PH-105 Realty Corp v Elayaan, 183 A.D.3d 492, 492 [1st Dept 2020].) Plaintiff submitted Seaview's tax-exemption files signed by Ruskin as Seaview's president. In these files submitted to the IRS, Seaview claims to be a "homeowners association." Under New York law, a homeowners association is a form of ownership of property by individuals. It is usually organized as a not-for-profit corporation. Homeowners ordinarily derive their ownership of common property through shares of interests in the corporation. (See All Seasons Resorts v Abrams, 68 N.Y.2d 81, 91 [1986].) A homeowners association sometimes performs maintenance duties to common areas. For federal-tax-exemption purposes, a homeowners association is composed of owners of single-family residential units. (See 26 CFR 1.528-1.) It manages and maintains property owned by the association or commonly owned by the association's members. (See 26 USC § 528.)
Because Seaview and Ruskin assert in the tax-exemption forms that it is a homeowners association, they may not contradict in this action the statements they made under penalties of perjury. (See Mahoney-Buntzman v Buntzman, 12 N.Y.3d 415, 422 [2009] [holding that, as a matter of policy, parties are prohibited from asserting in legal proceedings positions contrary to declarations made under the penalty of perjury on tax returns].)
Seaview does not provide any basis for contradicting its statements in tax-exemption files. When the sale of real property in New York is conditioned on membership in a homeowners association, the sponsor of the sale must comply with General Business Law (GBL) § 352-e. The statute authorizes the New York Attorney General to promulgate rules that establish the requirements for the offering plan and for the declaration of covenants and other documents to be filed. (13 NYCRR 22.1, 22.3.) Seaview argues that it is not a homeowners association, because it does not have an offering plan sponsored by a real-estate developer. Seaview also contends that it is not subject to any filed declaration. This argument is not persuasive. First, NYCRR 22.1 does not require that the sponsor of an offering plan be a real-estate developer. (See 13 NYCRR 22.1 [c] [1] ["Sponsor means any person, partnership, joint venture, corporation, company, trust, association, or other entity...."].) Second, that Seaview is not subject to any filed declaration is consistent with the possibility that Seaview is a homeowners association, yet failed to comply with its obligations under 13 NYCRR 22.3.
Plaintiff's request to inspect documents under N-PCL § 621 (e-1) is granted. With respect to the scope of that inspection, § 621 (e-1) is different, and narrower in scope, than related subsections (b) and (e). Section 621 (b) provides that a member may "examine" the association's minutes or membership list and "make extracts therefrom." Section 621 (e), which deals specifically with financial documents, namely a balance sheet and profit-and-loss statement, requires the association to provide copies of those documents to a member on written request. Section 621 (e-1), on the other hand, provides that in addition to those documents, an association member "shall also be entitled to review" a wider range of financial records on request. Given these differences in language, the court concludes that plaintiff must be permitted to read and take notes on the records described in subsection (e-1), but that defendants are not required to permit him also to make copies of those records.
II. Defendants' Motion to Dismiss (Mot Seq 002)
A. The Effect of the Prior Article 78 Proceeding
Plaintiff and defendants previously litigated some of plaintiff's claims in an article 78 proceeding brought in Supreme Court, Suffolk County (Index No. 624790/2023, Robert Quinlan, J.). The previously litigated claims include plaintiff's fourth, fifth, sixth, seventh, eighth, ninth, tenth, and eleventh causes of action. That court issued an order in January 2024 denying plaintiff's article 78 petition and dismissing the proceeding. (See NYSCEF No. 60.) Defendants do not assert a preclusion defense. Instead, they suggest that the decision in the Suffolk County proceeding is persuasive on why the court should grant defendants' motion to dismiss on the litigated claims in this action. Plaintiff argues that the decision in that proceeding has no preclusive effect and is irrelevant to this action.
The court agrees with plaintiff that the Suffolk County proceeding is irrelevant to this case. The petition in the article 78 proceeding was denied without prejudice to plaintiff's right to commence a separate action. In its order, the court did not determine the merits of plaintiff's claims. It found only that plaintiff did not clearly plead the elements of causes of action that would enable the court to convert the proceeding into an action under CPLR 103 (c). The court wrote that it is better for plaintiff to "commence an action with a well pled complaint" than for the court to convert the article 78 proceeding into an action. It further noted that plaintiff could have pleaded the elements of causes of action in a well pleaded complaint and pursued his claims that way. (NYSCEF No. 60.)
In this action, plaintiff has made new factual allegations in his complaint and opposition to motion to dismiss. These allegations were not pleaded in the Suffolk County proceeding. It is for this court to determine whether defendants' motion to dismiss plaintiff's claims should be granted, given what plaintiff alleges in this action. (See generally Leon v Martinez, 84 N.Y.2d 83, 87 [1994] [holding that in a motion to dismiss under CPLR 3211, courts determine only whether factual allegations fit within any cognizable legal theory].)
B. Whether Defendants' Motion to Dismiss is Premature
Plaintiff argues that defendants' motion to dismiss is inappropriate and should be denied as premature on the ground that plaintiff has not yet served Ruskin. This court disagrees. As defendants correctly point out that Ruskin has appeared in this action by attorney. (See CPLR 321 [a].) His appearance is equivalent to personal service and confers personal jurisdiction on the court. (See CPLR 320 [b].)
C. First Cause of Action: Defamation Per Se
Plaintiff claims that Ruskin made numerous false statements to Seaview's members at a general member meeting and through emails. Ruskin allegedly charged plaintiff with unlawfully stalking and videotaping Seaview's employees. Plaintiff brings a defamation claim against Ruskin.
Plaintiff's allegations in a defamation claim must be sufficiently specific to satisfy CPLR 3016 (a). When bringing a claim of defamation, a plaintiff must set forth in the complaint the particular words of the statements alleged to be false and defamatory. (CPLR 3016 [a].) The complaint must also allege the time, place, and manner of the false statement and specify to whom it was made. (Dillon v City of New York, 261 A.D.2d 34, 35 [1st Dept 1999].) In addition to CPLR 3016 (a)'s requirements, plaintiffs who do not adequately allege that they lost something of economic or pecuniary value as a result of the allegedly false statements must also allege that these false statements constitute defamation per se. (Miserendino v Cai, 218 A.D.3d 1261, 1262 [4th Dept 2023]; accord Liberman v Gelstein, 80 N.Y.2d 429, 434 [1992] [holding that when plaintiffs do not plead economic damages, they must show that the false statements are slander per se in an action for slander].) False statements are defamation per se when they charge a plaintiff with a serious crime. (See Geraci v Probst, 15 N.Y.3d 336, 344 [2010] [holding that damages in a claim of defamation are presumed when false statements charge a person with a serious crime]; Liberman, 80 N.Y.2d at 434 [holding that slander per se exists when the false statements accuse a person of comitting a serious crime].)
As a threshold matter, plaintiff's complaint satisfies CPLR 3016 (a)'s requirements. Plaintiff has specified the time, place, and manner of the false statements made by Ruskin that plaintiff was stalking, harassing, and videotaping Seaview's employees and managers. (NYSCEF No. 1 at ¶¶ 23-26.) These allegations meet the CPLR 3016 (a) standard.
Ruskin argues that even if plaintiff's complaint satisfies CPLR 3016 (a)'s requirements, plaintiff does not show that he suffered monetary or pecuniary damage or that Ruskin's allegedly false statements are defamation per se. Plaintiff argue that stalking and harassment are serious crimes. Ruskin's statements that charge plaintiff with stalking and harassment are defamation per se which exempts plaintiff from showing monetary damages.
Plaintiff's allegations do not show that Ruskin's statements are defamation per se and do not include any monetary or pecuniary damages. Neither harassment nor stalking necessarily qualifies as "serious crimes" for defamation purposes. In Liberman, the Court of Appeals found that harassment is a relatively minor offense and that the reputational harm to plaintiff was insubstantial. (See 80 N.Y.2d at 436.) Similarly, the Appellate Division has found that stalking in the fourth degree under Penal Law § 120.45 is not a serious crime. (See Corsini v Morgan, 123 A.D.3d 525, 527 [1st Dept 2014].)
Plaintiff contends that stalking in the first degree is a class D felony and therefore a serious crime. But to be guilty of that crime under Penal Law § 120.60, a defendant must cause physical injury to the victim intentionally or recklessly. Ruskin's allegedly false statements do not assert any intentional or reckless physical harm. The relevant crime is therefore not stalking in the first degree. Stalking in any other degree is a misdemeanor and therefore not a serious crime within the meaning of defamation doctrine. (See Corsini, 123 A.D.3d at 527.)
Defendants' motion to dismiss plaintiff's first cause of action is granted.
D. Second Cause of Action: Violation of Not-For-Profit Corporation Law
According to plaintiff, Seaview allegedly violated N-PCL § 621 when it refused to give him all the documents he requested to inspect. As discussed above on motion sequence 001, plaintiff is entitled to inspection of some, but not all, of the categories of documents that he alleges are subject to § 621's inspection requirements.
On this motion, Seaview makes an additional argument for why it is not a homeowners association (and therefore not subject to the inspection obligations imposed by § 621 (e-1). Seaview contends, in particular, that it is not a homeowners association because it lacks authority to regulate how property owners in Seaview use their properties. (NYSCEF No. 55 at 1.) But Seaview does not provide authority establishing that regulation of its members' property is a necessary element of being a homeowners association, legally speaking. Nor, in any event, does Seaview satisfactorily explain why it described itself as a homeowners association in its Form 990 tax filings.
Defendants' motion to dismiss plaintiff's second cause of action is granted in part and denied in part, consistent with this court's determinations on motion sequence 001.
E. Third Cause of Action: Invasion of Privacy
New York Civil Rights Law § 52-a creates a private right of action against any person who installs or affixes a video imaging device on his property to record others' recreational activities in the adjoining properties' backyard. Plaintiff alleges that defendants pointed their video cameras toward plaintiff's property. He also alleges that defendants' employees had been flying drones over and around his property. Defendants argue that flying drones were not affixed to defendants' property, so any use of drones by them does not violate NYCRL § 52-a. Additionally, Ruskin allegedly asserted that he possesses a video of plaintiff naked in his property at a general meeting. (NYSCEF No. 1, ¶60.) Defendants contend that Ruskin's possession of the video is not an actionable offense under NYCRL § 52-a.
Plaintiff plainly alleges in his complaint that defendants pointed fixed video cameras towards his property to record his recreational activities, in addition to the airborne drones. (NYSCEF No. 1, ¶ 58.) This alone states a cause of action under NYCRL § 52-a. Defendants' contention that plaintiff included this allegation only in his opposition to their motion is incorrect. And even if defendants were correct, the court would be free to consider plaintiff's attempt to remedy defects in his complaint through his representations in opposing dismissal. (See Leon, 84 N.Y.2d at 87 ["In assessing a motion under CPLR 3211 [a] [7], a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint...."]; accord Ray v Ray, 108 A.D.3d 449, 452 [1st Dept 2013] [explaining that facts submitted by plaintiff in opposing a motion to dismiss are accepted as true].) Plaintiff has made sufficient allegations to defeat a motion to dismiss a claim of invasion of privacy under NYCRL § 52-a.
Defendants' motion to dismiss plaintiff's third cause of action is denied with regard to the video-cameras allegation.
F. Fourth Cause of Action: Conversion and Trespass to Chattel
Plaintiff alleges two incidents in which Seaview committed either conversion or trespass to chattel. Conversion occurs when an individual intentionally controls another individual's personal property or interferes with another's right of possession without authorization. (Colavito v New York Organ Donor Network, Inc., 8 N.Y.3d 43, 49 [2006].) Trespass involves an interference with a person's right of possession either lawfully or through unlawful performance of a lawful act. (Kurzner v Sutton Owners Corp., 245 A.D.2d 101, 101 [1st Dept 1997].)
The first incident on August 13, 2023, does not satisfy the requirements of conversion or trespass to chattel. Plaintiff does not allege that Seaview intentionally controlled or interfered with his possession of the stolen property. Plaintiff alleges only that Seaview was negligent in managing the security of its marina so that plaintiff's property in the marina was stolen on August 13, 2023. (NYSCEF No. 1 at ¶66; NYSCEF No. 11 at ¶ 70.) Negligent security resulting in theft of personal property is an actionable tort only when a special relationship exists between parties. (See Hassan v Bellmarc Prop. Mgmt. Servs., 12 A.D.3d 197, 197 [1st Dept 2004]; Sakhai v 411 E. 57th St. Corp., 272 A.D.2d 231, 233 [1st Dept 2000].) And plaintiff does not attempt to satisfy this pleading requirement.
Plaintiff's factual allegations about the second incident on August 30, 2023, suffice to survive a motion to dismiss. On August 30, 2023, plaintiff warned defendants not to remove his property. Despite the warning, defendants' employees supposedly removed and destroyed plaintiff's property. Plaintiff alleges that he witnessed the process through his door camera. (NYSCEF No.1, ¶ 68.) These factual allegations, assumed to be true for purposes of this motion, show defendants' intentional interference with plaintiff's right of possession.
Defendants' motion to dismiss plaintiff's fourth cause of action is denied with respect to the August 30 incident.
G. Fifth Cause of Action: Witness Tampering/False Statement
Plaintiff claims that Ruskin made false statements to a public servant and influenced Seaview's employees to make false statements, in violation of Penal Law §§ 175.30 and 215.10, respectively; and that as a result, the Town of Islip allegedly denied plaintiff's application for a year-round residential driving permit. Defendants argue that neither provision confers a private right of action to plaintiff, and thus that he does not state a claim.
A person violates Penal Law § 175.30 when that person knowingly files false statements with a public official. Penal Law § 215.10 prohibits witness tampering in which a person prevents someone from being a witness in an action or a proceeding. The text of Penal Law §§ 175.30 and 215.10 does not explicitly confer a private right of action on plaintiff. And this court agrees with the decision of the motion court in Martian Entertainment, LLC v Harris that no basis exists to imply a private right of action for witness tampering, either. (See 2006 NY Slip Op 51517[U], at *6 [Sup Ct, NY County 2006]; cf. Joseph v Citibank, 271 A.D.2d 358, 358 ["[A]llegations of perjury committed in... prior judicial proceedings do not form the basis of a separate, subsequent civil action for damages"].) Plaintiff's argument that Martian Entertainment should be distinguished based on the relief sought by the plaintiff in that case is unpersuasive. Absent a private civil right of action to enforce Penal Law §§ 175.30 or 215.10, plaintiff lacks a legally cognizable claim.
Defendants' motion to dismiss plaintiff's fifth cause of action is granted.
H. Sixth Cause of Action: Violation of the Freedom of Information Law and the Open Meetings Law
Plaintiff claims that Seaview violated the Freedom of Information Law and the Open Meetings Law. (See Public Officers Law §§ 87, 103.) Plaintiff also claims that Seaview Water Company, a Seaview Association alter ego, violated these laws. Seaview argues these claims fail because Seaview is not an agency for FOIL purposes (as defined in Public Officers Law § 86), and therefore is not subject to FOIL disclosure obligations. This court agrees with Seaview for the reasons set forth above on motion sequence 001.
Defendants' motion to dismiss plaintiff's sixth cause of action is granted.
I. Seventh Cause of Action: Violation of Public Service Law § 89-b
Plaintiff claims that Seaview Association violated Public Service Law (PSL) § 89-b through what plaintiff asserts to be its alter ego, Seaview Water. Plaintiff's complaint alleges that alleges that he "requested but was not provided with certification regarding water service" from Seaview Water. (NYSCEF No. 1 at ¶ 91.) In opposing the motion to dismiss, plaintiff states in his memorandum of law that "[o]n information and belief the Association has provided such a certificate in support of other year-round residential permit applications"-and thus, by implication, that its alleged refusal to give him a certification inflicts undue disadvantage on him in violation of PSL § 89-b (3). (NYSCEF No. 67 at 8.) Ruskin also allegedly made false statements that the water service that Seaview Water provided to plaintiff had been disconnected. (See NYSCEF No. 1 at ¶ 93.)
Defendants contend that plaintiff does not establish that an alter-ego relationship exists between the Seaview Association and Seaview Water. This court agrees. Plaintiff has shown, at most, that the Seaview Association and Seaview Water both have offices located on the 23rd Floor of 5 Penn Plaza-a large office building. That is not sufficient, standing alone, to establish that the two entities are alter egos of one another so as to hold the Seaview Association liable for acts of Seaview Water. (See Board of Mgrs. of the Gansevoort Condominium v 325 W. 13th, LLC, 121 A.D.3d 554, 554-555 [1st Dept 2014] [holding that allegations that two parties have "common office space, the same telephone number and the same email account" is not alone sufficient to establish that the parties are alter egos of one another for veil-piercing purposes].)
Regardless, plaintiff's statement in his memorandum of law that, on information and belief, the Seaview Association at some point in the past had provided certificates of water service to unnamed other association members applying for year-round residential permits is not sufficient to support a claim for violation of the anti-discrimination requirements of PSL § 89-b (3). And plaintiff does not identify any provision of § 89-b that prohibits third parties from making (allegedly) false statements about whether a water-works corporation had disconnected a particular customer's service.
Defendant's motion to dismiss plaintiff's seventh cause of action is granted.
J. Eighth Cause of Action: Nonpayment of the Debenture
Plaintiff claims that he is entitled to payment of four debenture notes Seaview issued to his grandfather. The notes matured in 1979, 20 years after their issuance in 1959. Seaview allegedly did not make payment on the notes upon their maturity. He now seeks to collect them from Seaview. Seaview argues that plaintiff is not entitled to payment, because Seaview did not issue the notes to him. Seaview also contends that the applicable statute of limitations under CPLR 211 (a) has expired.
The court agrees with Seaview that the statute of limitations on the nonpayment claim has expired. Under CPLR 211 (a), an action to recover principal or interest upon a debt instrument must be commenced within 20 years after the cause of action accrues. CPLR 211 (a) applies when the debt instrument was secured only by a pledge of the faith and credit of the issuer. Seaview allegedly has not paid the principal or interests of the debenture notes as of now. Plaintiff asserts that the debenture notes were backed fully by Seaview's creditworthiness and reputation. The notes matured in 1979, which means that the cause of action was ripe as early as 1979. More than 20 years have passed since 1979.
Defendants' motion to dismiss plaintiff's eighth cause of action is granted.
K. Ninth Cause of Action: Real Property Actions and Proceedings Law
Plaintiff also sues to compel determination of a property claim against Seaview brought under Real Property Actions and Proceedings Law (RPAPL) article 15. He challenges Seaview's ownership of the Seaview community streets. Plaintiff alleges that he has property rights and public easement rights in the streets in the Seaview community and that Seaview violated his rights when Seaview closed the streets from December 31, 2023, to January 1, 2024. In response, Seaview provides the deed conveying the streets to Seaview. (NYSCEF No. 64.) Seaview also seeks to dismiss the claim on the grounds that it does not meets RPAPL article 15's pleading requirements.
RPAPL article 15 provides for an action to compel the determination of a claim to real property. A plaintiff bringing this type of claim must set forth facts showing plaintiff's estate or interest in the real property, the particular nature of the estate or interest, and the source from or means by which plaintiff's estate or interest immediately accrued to plaintiff. (RPAPL 1515 [1] [a].) Plaintiff sets forth no factual allegation showing the nature of his property interests in the streets. Although Seaview asserts that title owners of the residential lots in Seaview have a deeded right to use Seaview's property (NYSCEF No. 56, ¶ 4), plaintiff does not plead the nature of his interest in the streets. Neither does plaintiff plead how his interest in the streets accrued to him. His assertion that he has a property right and public easement right in the streets is merely conclusory.
Defendants' motion to dismiss ninth cause of action is granted.
L. Tenth Cause of Action: Disability Discrimination
Plaintiff claims that Seaview violated the Americans with Disabilities Act, New York State Human Rights Law, and New York State Civil Rights Law. (See 42 USC §§ 12181-12189; Executive Law § 296; Civil Rights Law § 40-c.) Plaintiff alleges that Seaview discriminatorily denied plaintiff's request for a golf cart permit to accommodate his disability. Seaview argues that plaintiff does not allege or prove that he is disabled.
Plaintiff does not need to prove his disability on a motion to dismiss under CPLR 3211 (a) (7). (See Leon, 84 N.Y.2d at 87.) Facts submitted by plaintiff, including those in his opposition to a motion to dismiss, are accepted as true on a motion to dismiss. (Ray, 108 A.D.3d at 452.) Plaintiff alleges in his opposition that his disability prevents him from walking. (NYSCEF No. 67 at 12.) He therefore sufficiently alleges that he has a disability for purposes of this claim. (See Executive Law § 292 [21] [defining disability to include physiological conditions preventing the exercise of a normal bodily function].)
Defendants' motion to dismiss plaintiff's tenth cause of action is denied.
M. Eleventh Cause of Action: Breach of Fiduciary Duty
Plaintiff claims that Ruskin breached his fiduciary duties to Seaview and plaintiff. Defendants correctly observe that plaintiff's complaint contains only conclusory assertions that Ruskin breached his fiduciary duties to Seaview and plaintiff. Furthermore, defendants argue that plaintiff does not meet N-PCL § 623's requirements to bring a derivative action for breach of fiduciary duty on Seaview's behalf against Ruskin. In his affirmation in opposition to the motion to dismiss, plaintiff alleges only that Ruskin wrongfully deposited plaintiff's check, made payable to Seaview, into his own personal account. Plaintiff also clarifies that he is not bringing a derivative action against Ruskin on Seaview's behalf. Plaintiff argues that Ruskin directly harmed plaintiff, and thus that plaintiff's claim is not subject to N-PCL § 623's requirements for a derivative action. Plaintiff and defendants each submit evidence going to the issue of whether Ruskin properly deposited plaintiff's check. (NYSCEF No. 72, 74.)
When evidentiary material is submitted and considered on a motion to dismiss, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one. Unless it has been shown that a material fact alleged in the complaint is not a fact at all or that no significant dispute exists around it, a motion to dismiss should be granted under the circumstances. (See Guggenheimer v Ginzburg, 43 N.Y.2d 268, 275 [1977].)
Plaintiff does not state or have a cause of action that Ruskin breached his fiduciary duty to plaintiff. Plaintiff claims that Ruskin deposited plaintiff's check into his personal account. Both plaintiff and defendants submit evidence on where Ruskin deposited the check. Plaintiff's evidence contains only a check (NYSCEF No. 72), which, standing alone, does not show where it was deposited. On the other hand, defendants submit Seaview's business account record, which indicates that plaintiff's check was deposited into Seaview's business checking account. (NYSCEF No. 74.) Defendants show that the check was not deposited into Ruskin's personal account, contrary to what plaintiff alleges. And other than Ruskin's alleged misconduct regarding the check, plaintiff makes only conclusory assertions that Ruskin breached his fiduciary duties to plaintiff.
Defendants' motion to dismiss plaintiff's eleventh cause of action is granted.
N. Twelfth cause of action: Selective Enforcement
Plaintiff brings a claim of "selective enforcement" against defendants. He claims that Seaview and Ruskin treated plaintiff differentially from other homeowners and real-estate brokers. Defendants argue that plaintiff does not include facts about how other similarly situated property owners or real-estate brokers are treated differently.
Plaintiff does not state in his complaint or opposition what rule was selectively enforced. Neither does he make any factual allegation about how similarly situated homeowners in Seaview were treated differently. He conclusively asserts that Seaview had selectively enforced some rules against plaintiff and that other similarly situated property owners were treated differently. Although plaintiff asserts that Seaview permitted real-estate brokers other than plaintiff to use golf carts in Seaview's property, this court cannot discern under what legal authority defendants alleged disparate treatment is actionable. Even if the court accepts all of plaintiff's allegations as true, they do not fit into any cognizable legal theory.
Defendants' motion to dismiss plaintiff's twelfth cause of action is granted.
III. Plaintiff's Cross-Motions (Mot Seq 002)
A. Plaintiff's Putative Cross-Motion for Leave to Amend
In his memorandum of law in opposition to defendant's motion to dismiss, plaintiff asks for leave to amend his complaint in the event that some or all of defendants' motion to dismiss is granted. But plaintiff does not cross-move to amend; nor state how he would amend if the motion to dismiss is granted in whole or in part. Plaintiff's putative cross-motion for leave to amend is procedurally defective and is therefore denied.
B. Plaintiff's Cross-Motion to Disqualify Counsel
Plaintiff also cross-moves to disqualify defendants' counsel, Frank Isler, Esq. The cross-motion is denied.
The movant on a motion to disqualify bears the burden to show that disqualification is warranted. (Id.) Whether to grant disqualification is within the court's discretion. (See Campolongo v Campolongo, 2 A.D.3d 476, 476 [2d Dept 2003].)
Under Rule 1.7 (a) of the Rules of Professional Conduct (22 NYCRR 1200.0), a lawyer may not represent a client if a reasonable lawyer would conclude that the lawyer will represent differing interests. Plaintiff argues that Isler's concurrent representation of Ruskin and Seaview creates a conflict of interest. Isler denies the existence of a conflict. In addition, Isler submits the affirmation of Jeffrey Lenobel, Esq., a director of Seaview and the chair of Seaview's legal committee. Lenobel states that he believes no conflict exists in Isler's concurrent representation and that if a conflict exists, Seaview would waive the conflict and consent to Isler's representation. Plaintiff asserts that Seaview may not consent to the representation.
Plaintiff does not satisfy his burden in showing that Isler represents differing interests through his representation of both Seaview and Ruskin. Plaintiff relies on New York State Bar Association's Committee on Professional Ethics Opinion No. 901 (2011) to show that Isler's concurrent representation creates adversarial interests. Plaintiff's reliance on this ethics opinion is unpersuasive. The ethics opinion offers two hypothetical situations in which a lawyer who concurrently represents a corporation and its officer has a conflict of interest. In one hypothetical, a lawyer represents a corporation in a suit by or against its officer and, as a result, acquires conflicting interests. In the other hypothetical, a lawyer has differing interests when advising on corporate-governance matters, because the lawyer represents a corporation and its directors concurrently. But Seaview is neither suing nor sued by Ruskin. Nor does plaintiff's action involve Seaview's corporate governance.
Plaintiff also argues that Seaview's interests are different from Ruskin's interests with respect to plaintiff's breach of fiduciary claim (eleventh cause of action). On that claim, as discussed above, plaintiff alleges in the complaint that Ruskin breached his fiduciary duties to Seaview. But plaintiff acknowledges that he is not bringing a derivative suit on behalf of Seaview against Ruskin. (NYSCEF No. 67 at 16.) Plaintiff alleges only that Ruskin caused direct harm to plaintiff and breached his fiduciary duties to plaintiff. Isler is therefore not representing Ruskin against a breach-of-fiduciary-duty claim plaintiff brings on behalf of Seaview.
Nor does a conflict exist with respect to the other 11 causes of action. On these causes of action, plaintiff alleges wrongful conduct by Seaview and Ruskin wrongful conduct that either caused direct harm to plaintiff or violated his rights. Seaview and Ruskin do not have differing interests in defending themselves against these claims.
Plaintiff's cross-motion to disqualify counsel is denied.
IV. Plaintiff's Preliminary-Injunction Motion and Defendant's Cross-Motion for Sanctions (Mot Seq 003)
A court may grant a preliminary injunction when the moving party has demonstrated (1) likelihood of ultimate success on the merits, (2) irreparable injury in the absence of preliminary injunction, and (3) a balance of equities tipping in favor of the moving party. (1234 Broadway LLC v West Side SRO Law Project, Goddard Riverside Community Ctr., 86 A.D.3d 18, 23 [1st Dept 2011].)
Plaintiff does not demonstrate that he is likely to succeed on the merits of the underlying claim. Plaintiff argues that Seaview's construction materials stored on Gale Avenue infringe upon his property rights and public-easement rights. (NYSCEF No. 89 at 3.) But, as discussed above, this court has already concluded that plaintiff's only claim implicating his property/easement interests in Gale Avenue-the ninth cause of action (see NYSCEF No. 1 at ¶¶ 97-102)-must be dismissed for failure to satisfy the pleading requirements of RPAPL article 15. (See Discussion § III.K.) Absent a legally cognizable claim underlying his request for injunctive relief, plaintiff cannot show that a preliminary injunction would be warranted here.
Plaintiff also asks this court to order defendants to comply with his discovery demands and subpoenas on an expedited basis. (See NYSCEF No. 87; NYSCEF No. 88 at ¶ 13.) But the service of defendants' CPLR 3211 motion to dismiss stayed discovery pending determination of the motion. Nor does plaintiff identify facts that might warrant lifting that stay.
At the same time, this court disagrees with defendants' contention on their cross-motion that plaintiff's request for a preliminary injunction is frivolous and warrants sanctions under 22 NYCRR 130-1.1 (a). Defendants argue essentially that plaintiff's injunction request is foreclosed by a provision of the 2022 settlement between the parties in which the parties agreed to construction of deer fences that would enclose the area at the north end of Gale Avenue. (NYSCEF No. 117 at 2-3.) This fencing, defendants contend, is fundamentally inconsistent with plaintiff's request for an injunction blocking storage of construction materials on Gale Avenue in the name of public access. This contention is unpersuasive. Plaintiff's stated basis for seeking a preliminary injunction request is that defendants' storage of materials in the enclosed area and (putatively) planned construction there infringe upon his property interests and public-easement rights. Plaintiff is not, however, asking the court to compel defendants to grant public access to the enclosed area by, for example, removing the deer fences. Whether plaintiff agreed to the establishment of the deer fences in 2022 does not defeat-much less render frivolous-plaintiff's request for injunctive relief now.
V. Plaintiff's Motion to Supplement His Complaint (Mot Seq 004)
On motion sequence 004, plaintiff seeks, in effect, to supplement his complaint to add two causes of action based on events occurring after he filed the original complaint. (See S. E. Nichols Inc. v Grossman, 50 A.D.2d 1086, 1086 [4th Dept 1975] [holding that plaintiff's sixth cause of action was supplemental because it alleged acts by defendants that did not exist at the time of the original complaint or motion to dismiss].)
A plaintiff may seek leave to supplement his complaint under CPLR 3025 (b). The court has wide discretion in granting leave to supplement; but it must deny leave if the supplement sought is "palpably improper or insufficient as a matter of law." (Maloney Carpentry, Inc. v Budnik, 37 A.D.3d 558, 558 [2d Dept 2007].) The court must also deny leave if the supplemental complaint would cause undue hardship or surprise. (id.)
Plaintiff's request for leave to add a thirteenth cause of action is denied because the proposed claim is insufficient as a matter of law. The allegations supporting the proposed claim conclusorily assert that Seaview breached the 2022 agreement in the spring of 2024-but without identifying the conduct at issue or how it constituted a breach. (See NYSCEF No. 104 at ¶¶ 125-130 [proposed thirteenth cause of action].) In his reply affirmation on this motion, plaintiff represents that Seaview made several accusations that he had trespassed on Seaview's property on Gale Avenue, and, based on those accusations, assessed multiple fines on him and denied him access to the boat basin. (See NYSCEF No. 122 at ¶¶ 6-12.) But plaintiff does not explain how this alleged conduct breached the 2022 agreement, or even identify the provisions of that agreement on which he relies. A party, like plaintiff, asserting a claim in breach of contract is not required "to attach a copy of the contract or plead its terms verbatim." (Griffin Bros., Inc. v Yatto, 68 A.D.2d 1009, 1009 [3d Dept 1979].) But the plaintiff still must "allege, in nonconclusory language, as required, the essential terms" of the contract, "including those specific provisions of the contract upon which liability is predicated" and how defendant breached those provisions. (Caniglia v Chicago Tribune-N.Y.News Syndicate, 204 A.D.2d 233, 234 [1st Dept 1994].) Plaintiff has done neither.
Plaintiff's proposed fourteenth cause of action alleges that Seaview breached a contract implied in fact by improperly denying him access to the boat basin and Seaview's other facilities. With respect to the boat basin, defendants represent-and plaintiff does not dispute-that access to/use of the basin is governed by a written contract. Given this express contract, plaintiff's claim for breach of an implied contract is insufficient as a matter of law to the extent it is based on a denial of access to the boat basin. (See Miller v Schloss, 218 NY 400, 406-07 [1916] [holding that a contract cannot be implied in fact if an express contract already covers the subject-matter involved].)
With respect to Seaview's other facilities, on the other hand, plaintiff's breach-of-implied-contract claim is not clearly without merit. In Seaview Association of Fire Island, NY, Inc. v Williams, the Court of Appeals held that the purchaser of a property in a community enters into an implied-in-fact contract with a homeowners association, when the purchaser is aware that the homeowners association provides facilities and services for the benefit of the residents. (69 N.Y.2d 987, 989 [1987].) The purchase of the property gives rise to an obligation of the purchaser to pay a proportionate share of the full cost of maintaining those facilities and services. Plaintiff represents that he has paid his dues in full and yet is wrongfully denied access to Seaview's facilities. (See NYSCEF No. 104 at ¶ 131.) In response, defendants contend that the denial of access was proper because plaintiff is not a member of Seaview "in good standing." (NYSCEF No. 113 at ¶ 27.) This contention-the merits of which the court does not reach or resolve-is not sufficient to establish for purposes of this motion that plaintiff's proposed fourteenth cause of action is wholly without merit. Plaintiff's request to supplement his complaint with a fourteenth cause of action based on Seaview's alleged denial of access to facilities other than the boat basin is granted.
Accordingly, it is
ORDERED that plaintiff's motion to inspect documents (mot seq 001) is denied with respect to plaintiff's request under N-PCL § 621 (b) to inspect documents maintained by Seaview under N-PCL § 621 (a), and granted with respect plaintiff's request under N-PCL § 621 (e-1) to inspect those financial records of Seaview enumerated in § 621 (e-1); and it is further
ORDERED that Seaview shall within 30 days of notice of entry permit plaintiff to conduct an inspection of the § 621 (e-1) financial records of Seaview-at which Seaview must permit plaintiff to take notes but is not required to permit him to make copies of those records; and it is further
ORDERED that defendants' motion to dismiss (mot seq 002) is granted with respect to plaintiff's first, fifth, sixth, seventh, eighth, ninth, eleventh, and twelfth causes of action; and it is denied with respect to plaintiff's second, third, fourth, and tenth causes of action; and it is further
ORDERED that plaintiff's cross-motion to disqualify plaintiff's counsel and for leave to amend (mot seq 002) is denied; and it is further
ORDERED that plaintiff's motion for a preliminary injunction (mot seq 003) is denied; and it is further
ORDERED that plaintiff's motion for leave to amend or supplement his complaint (mot seq 003) is denied with respect to the proposed thirteenth cause of action and the aspect of the proposed fourteenth cause of action based on denial of access to Seaview's boat basin, and is granted with respect to the aspect of the proposed fourteenth cause of action based on denial of access to Seaview's other facilities; and it is further
ORDERED that plaintiff shall, within 14 days of service of notice of entry, file a new version of his complaint reflecting this court's determinations on mot seqs 002 and 004, which upon filing shall be deemed plaintiff's operative pleading in this matter; and it is further
ORDERED that defendants shall serve a copy of this order with notice of its entry on plaintiff; and it is further
ORDERED that the parties shall appear before this court for a telephonic preliminary conference on September 6, 2024.