Opinion
Index 153622/2012 590523/2013
03-23-2022
BEVERLY FUISZ, individually and as Executor of the ESTATE OF ROBERT FUISZ, Plaintiff, v. 6 EAST 72ND STREET CORPORATION, BOARD OF DIRECTORS OF 6 EAST 72ND STREET CORPORATION, JOSEPH K. BLUM CO., LLP, JAMES J. BLUM, GUMLEY HAFT, INC., and MYRNA RONSON, Defendants. MYRNA RONSON, Third-Party Plaintiff, v. UBERTO LTD., Third-Party Defendant. Motion Seq. Nos. 012, 013, 014
Unpublished Opinion
MOTION DECISION
MOTION DATE 08/24/2021, 08/24/2021, 08/24/2021
DECISION + ORDER ON MOTION
KELLY O'NEILL LEVY, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 012) 326, 327, 328, 329, 330, 331, 332, 333, 334, 335, 336, 337, 338, 339, 340, 341, 342, 343, 344, 345, 346, 347, 348, 349, 350, 351, 352, 353, 354, 355, 356, 357, 358, 359, 360, 361, 362, 363, 364, 365, 366, 367, 368, 369, 370, 371, 372, 373, 374, 375, 376, 377, 378, 379, 501, 522, 523, 524, 525, 526, 527, 528, 529, 530, 531, 532, 533, 534, 535, 536, 537. 538, 539, 540, 541, 542, 543, 609, 610, 611, 653, 654, 655, 656, 657, 658, 659, 660, 661, 662, 663, 664, 665, 666, 667, 668, 669, 670, 671, 672, 673, 674, 675, 676, 677, 678, 679, 680, 681, 682, 683, 684, 685, 686, 687, 688, 689, 708, 709, 734, 735, 736, 812, 813, 814, 816 were read on this motion for SUMMARY JUDGMENT.
The following e-filed documents, listed by NYSCEF document number (Motion 013) 431, 432, 433, 434, 435, 436, 437, 438, 439, 440, 441, 442, 443, 444, 445, 446, 447, 448, 449, 450, 451, 452, 453, 454, 455, 456, 457, 458, 459, 460, 461, 462, 463, 464, 465, 466, 467, 468, 469, 470, 471, 472, 473, 474, 475, 476, 477, 478, 479, 480, 481, 482, 483, 484, 485, 486, 487, 488, 489, 490, 491, 492, 493, 494, 495, 496, 497, 498, 499, 500, 502, 544, 545, 546, 547, 548, 549, 550, 551, 552, 553, 554, 555, 556, 557, 558, 559, 560, 561, 562, 563, 564, 566, 567, 568, 569, 570, 571, 572, 573, 574, 575, 576, 577, 578, 579, 580, 581, 582, 583, 584, 585, 586, 587, 588, 589, 590, 591, 592, 593, 594, 595, 596, 597, 598, 599, 600, 601, 602, 603, 612, 613, 614, 615, 616, 617, 618, 619, 620, 621, 622, 623, 624, 625, 626, 627, 628, 629, 630, 631, 632, 633, 634, 635, 636, 637, 638, 639, 640, 641, 642, 643, 644, 645, 646, 647, 648, 649, 650, 651, 652, 711, 712, 713, 714, 715, 716, 717, 718, 719, 720, 721, 722, 723, 724, 725, 726, 727, 728, 729, 730, 731, 732, 733, 737, 738, 739, 740, 741, 742, 743, 744, 745, 746, 747, 748, 749, 750, 751, 752, 753, 754, 755, 756, 757, 758, 759, 760, 761, 762, 763, 764, 765, 766, 767, 768, 769, 770, 771, 772, 773, 774, 775, 776, 777, 778, 779, 780, 781, 782, 783, 784, 785, 786, 787, 788, 789, 790, 791, 792, 793, 794, 795, 796, 797, 798, 799, 800, 807 were read on this motion for SUMMARY JUDGMENT.
The following e-filed documents, listed by NYSCEF document number (Motion 014) 380, 381, 382, 383, 384, 385, 386, 387, 388, 389, 390, 391, 392, 393, 394, 395, 396, 397, 398, 399, 400, 401, 402, 403, 404, 405, 406, 407, 408, 409, 410, 411, 412, 413, 414, 415, 416, 417, 418, 419, 420, 421, 422, 423, 424, 425, 426, 427, 428, 429, 430, 503, 504, 505, 506, 507, 508, 509, 510, 511, 512, 513, 514, 515, 516, 517, 518, 519, 520, 521, 604, 605, 606, 607, 608, 690, 691, 692, 693, 694, 695, 696, 697, 698, 699, 700, 701, 702, 703, 704, 705, 706, 707, 710, 801, 802, 803, 804, 805, 806, 808, 809, 810, 811 were read on this motion for SUMMARY JUDGMENT.
KELLY O'NEILL LEVY, J.:
Motion sequence numbers 012, 013, and 014 are consolidated for disposition.
This is an action seeking specific performance and to recover money damages for property damage. Plaintiff Beverly Fuisz, a shareholder in the residential cooperative building located at 6 East 72nd Street, New York, New York (the building), brings this action alleging that her apartment suffered property damage from vibrations and water leaks during a renovation project undertaken by her upstairs neighbor, Myrna Ronson (Ronson).
Defendants Joseph K. Blum Co., LLP and James J. Blum (together, the Blum defendants) move, pursuant to CPLR 3212, for summary judgment dismissing the amended complaint and all cross claims and counterclaims asserted against them. Alternatively, the Blum defendants seek summary judgment on certain affirmative defenses asserted in their answer to the amended complaint (motion sequence number 012).
Plaintiff moves, pursuant to CPLR 3212, for: (1) summary judgment as to liability on her breach of contract claim against defendants Ronson, 6 East 72nd Street Corporation (the Coop), and the Board of Directors of 6 East 72nd Street Corporation (the Board); (2) summary judgment dismissing the tenth affirmative defense concerning the business judgment rule asserted by the Coop, the Board, and Gumley Haft, Inc. (Gumley Haft) (collectively, the Coop defendants); (3) summary judgment seeking specific performance of Ronson's alteration agreement; (4) summary judgment as to liability against the Coop for breach of the implied warranty of habitability, partial constructive eviction, and breach of the covenant of quiet enjoyment; (5) summary judgment as to liability on her negligence claim against Ronson; and (6) summary judgment as to liability on her nuisance and conversion claims against the Coop and Ronson (motion sequence number 013).
The Coop defendants cross-move, pursuant to CPLR 3212, for summary judgment dismissing the amended complaint in its entirety. In addition, the Coop defendants seek summary judgment on their cross claim for contractual indemnification against Ronson.
Ronson moves, pursuant to CPLR 3212, for: (1) summary judgment dismissing plaintiffs breach of contract, specific performance, nuisance, negligence, and conversion claims; (2) summary judgment dismissing plaintiffs request for punitive damages; (3) summary judgment dismissing all cross claims and counterclaims against her; and (4) summary judgment on her third-party claim for contractual indemnification against third-party defendant Uberto Ltd. (Uberto) (motion sequence number 014).
BACKGROUND
The following facts are undisputed unless otherwise noted. Plaintiff is a shareholder of the Coop and a holder of the proprietary lease for the apartment known as the "West Maisonette," a duplex located on the first and second floors of the building (NY St Cts Elec Filing [NYSCEF] Doc No. 432 ¶1). Gumley Haft was the managing agent during the relevant period (NYSCEF Doc No. 570 ¶ 8). In May 2008, Ronson became a shareholder of the Coop and a holder of the proprietary lease for Apartment 3/4B, a duplex located on the third and fourth floors of the Coop (NYSCEF Doc No. 432 ¶ 2). In May 2009, Ronson signed an alteration agreement and undertook a renovation of her apartment (id. ¶ 5). Ronson hired Uberto as her contractor for the project (id. ¶ 7).
Rider 5 of the alteration agreement states that no "wet-over-dry" or "noisy-over-quiet" installations can be made without the "express written consent" of the Coop (id. ¶ 8). In addition, rider 9 provides no "enlargement of existing bathrooms" can be made without the "specific prior written approval" of the Coop (id. ¶ 9). Plaintiff alleges that Ronson installed a new powder room, a new laundry room, and an expanded maid's bathroom on the third floor that were all above plaintiffs bedrooms (id. ¶¶ 10, 13, 16). According to plaintiff, the Coop never issued "express written consent" or "specific prior written approval" for the new powder room, laundry room or the expanded maid's bathroom (id. ¶¶ 20-23).
James J. Blum (Blum), the principal of Joseph K. Blum Co., LLP and a licensed professional engineer, avers that Joseph K. Blum Co., LLP provided consulting engineering services to the building from 1988 through 2016 (NYSCEF Doc No. 360, Blum aff, ¶ 2). The Board retained the Blum defendants to review Ronson's architect's plans (id., ¶¶ 6-7). By letter dated April 28, 2009, Blum recommended that the Board approve the project, in which he noted, among other things, that the rooms were being renovated without changing the basic layout (id.).
Plaintiff asserts that, in June 2009, vibrations and shaking from Ronson's renovation project damaged her apartment (NYSCEF Doc No. 4321 24). According to plaintiff, Uberto chopped a concrete slab in Ronson's apartment on the third floor of the building (id. ¶ 25). Rider 5 of the alteration agreement states that there shall be "no removals of floor slab materials" and no "structural slabs, demising walls or floor slabs may be channeled or cut" (id. ¶ 27).
On August 4, 2009, there was a leak into plaintiffs apartment, which plaintiff alleges was caused when Uberto cracked a water pipe (id. ¶ 30). On January 4, 2010, there was a second leak into plaintiffs apartment, which was allegedly caused when Uberto punctured a steam pipe with a nail or screw (id. ¶ 32). On April 16, 2010, there was a third leak into plaintiffs apartment, which plaintiff claims was caused when Uberto turned on a water line (id. ¶ 34).
Plaintiff commenced this action by filing a summons with notice on June 12, 2012 (NYSCEF Doc No. 1). The amended complaint, filed on March 5, 2013, asserts the following claims: (1) breach of contract against the Coop, the Board, and Ronson; (2) breach of the implied warranty of habitability against the Coop; (3) partial constructive eviction against the Coop; (4) breach of the covenant of quiet enjoyment against the Coop; (5) negligence against all defendants; (6) breach of fiduciary duty against the Board; (7) aiding and abetting a breach of fiduciary duty against the Blum defendants and Gumley Haft; (8) tortious interference with contract against the Board, the Blum defendants, and Gumley Haft; (9) specific performance against the Coop, the Board, and Ronson; (10) nuisance against all defendants; (11) conversion against the Coop, the Board, and Ronson; and (12) aiding and abetting conversion against the Blum defendants and Gumley Haft (NYSCEF Doc No. 435). Plaintiff seeks not less than $1,400,000 in damages, in addition to attorney's fees and expenses, punitive damages, an abatement of rent, and specific performance compelling the removal of Ronson's powder room, laundry room, and maid's bathroom (id.).
On June 20, 2013, Ronson impleaded Uberto, seeking contribution, common-law indemnification, contractual indemnification, and damages for failure to procure insurance (NYSCEF Doc No. 28).
On April 18, 2013, Justice Carol Edmead granted the Blum defendants' motion to dismiss only to the extent of dismissing the aiding and abetting conversion claim (NYSCEF Doc No. 22).
DISCUSSION
It is well settled the "[t]he proponent of summary judgment must establish its defense or cause of action sufficiently to warrant a court's directing judgment in its favor as a matter of law" (Ryan v Trustees of Columbia Univ. in the City of N. Y., Inc., 96 A.D.3d 551, 553 [1st Dept 2012] [internal quotation marks and citation omitted]). "Thus, the movant bears the burden to dispel any question of fact that would preclude summary judgment" (id.). "Once this showing has been made, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution" (Giufjrida v Citibank Corp., 100 N.Y.2d 72, 81 [2003]). The court's function on a motion for summary judgment is "issue-finding, rather than issue-determination" (Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 [1957], rearg denied 3 N.Y.2d 941 [1957] [internal quotation marks and citation omitted]).
A. Timeliness of the Coop Defendants' Cross Motion for Summary Judgment
The Coop defendants move for summary judgment dismissing plaintiffs' claims and for common-law and contractual indemnification against Ronson. In a footnote, the Coop defendants contend that their cross motion may be considered because their arguments are identical to those raised by the parties' respective motions for summary judgment.
In opposition to the Coop defendants' cross motion, plaintiff, Ronson, and Uberto contend that it should be denied as untimely.
By order dated January 28, 2021, the court directed that "[t]he deadline for filing any summary judgment motions is extended to May 7, 2021" (NYSCEF Doc No. 323). The Coop defendants' cross motion was filed over two months later on July 16, 2021 (NYSCEF Doc No. 565). Accordingly, the Coop defendants' cross motion is untimely.
The Coop defendants do not offer any good cause for the delay in making their cross motion for partial summary judgment (see Brill v City of New York, 2 NY3d 648, 652 [2004] ['"good cause' in CPLR 3212 (a) requires a showing of good cause for the delay in making the motion - a satisfactory explanation for the untimeliness . . ."]). The Coop defendants do not provide any explanation in their moving papers as to why their cross motion is untimely. "No excuse at all, or a perfunctory excuse, cannot be 'good cause'" (Brill, 2 NY3d at 652).
"A cross motion for summary judgment made after the expiration of the [deadline for making dispositive motions] may be considered by the court, even in the absence of good cause, where a timely motion for summary judgment was made seeking relief 'nearly identical' to that sought by the cross motion" (Alonzo v Safe Harbors of the Hudson Hous. Dev. Fund Co., Inc., 104 A.D.3d 446, 449 [1st Dept 2014], quoting Filannino v Triborough Bridge & Tunnel Auth., 34 A.D.3d 280, 281 [1st Dept 2006], appeal dismissed 9 NY3d 862 [2007]). Courts have explained that an untimely cross motion for summary judgment may be considered, even in the absence of "good cause," because the court may search the record pursuant to CPLR 3212 (b), and grant summary judgment to any party even if a cross motion has not been made (see Filannino, 34 A.D.3dat281).
Here, the court shall consider the Coop defendants' cross motion to the extent that it raises the same issues as plaintiffs timely motion for summary judgment. Contrary to plaintiffs contention, her breach of fiduciary duty claim is sufficiently related to the Coop defendants' business judgment rule affirmative defense and shall be considered, as plaintiff has raised unequal treatment in her own motion for summary judgment. Accordingly, the court does not consider the Coop defendants' arguments as to: (1) whether plaintiffs negligence claim is time-barred or duplicative of her breach of contract claim, (2) plaintiffs tortious interference with contract claim, (3) whether plaintiff suffered any damages, (4) whether plaintiffs nuisance and conversion claims are time-barred, and (5) whether plaintiffs claims should be dismissed against Gumley Haft.
Additionally, to the extent that the Coop defendants seek contractual indemnification from Ronson, the cross motion is not a true cross motion, since it seeks relief against a nonmoving party (see Muqattash v Choice One Pharm. Corp., 162 A.D.3d 499, 500 ; Kershaw v Hospital for Special Surgery, 114 A.D.3d 75, 87-88 [1st Dept 2013]). Moreover, Ronson did not move for summary judgment dismissing the Coop defendants' contractual indemnification claim as against her in her moving papers. Thus, the court cannot search the record and grant summary judgment in favor of the Coop defendants on their contractual indemnification claim against Ronson. Therefore, the court does not reach the Coop defendants' request for contractual indemnification against Ronson.
Additionally, the court does not consider: (1) Ronson's request for summary judgment dismissing the Coop defendants' cross claims for contribution, common-law indemnification, and contractual indemnification (NYSCEF Doc No. 802); and (2) Ronson's request for summary judgment dismissing Uberto's counterclaims for common-law indemnification, contractual indemnification, and failure to procure insurance (NYSCEF Doc No. 805). These requests were made for the first time in reply. Ronson cannot meet her prima facie burden in reply (see Dannasch v Bifulco, 184 A.D.2d 415, 417 [1st Dept 1992] ["The function of reply papers is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of, or new grounds for the motion"]).
B. Plaintiffs Breach of Contract and Specific Performance Claims
Plaintiff moves for partial summary judgment on the issue of liability for breach of the alteration agreement against the Coop and Ronson, arguing that numerous clauses explicitly refer to her and grant her enforceable rights. Plaintiff asserts, among other things, that the Coop breached the alteration agreement by allowing Ronson to install "wet-over-dry" and "noisy-over-quiet" installations without "express written consent" of the Board, and that Ronson breached that agreement by failing to obtain the "express written consent" of the Board.
Specifically, plaintiff relies on the following provisions: the notice to shareholders; that other shareholders would receive notice of commencement of work; that injunctive relief would lie because "other shareholders cannot be fairly or adequately compensated for damages"; Ronson must cover damage to "Adjacent Premises" which flows "directly or indirectly" from renovation work; and the indemnification provision requiring Ronson to indemnify- "shareholders" against all "claims, damages, expenses (including reasonable attorneys' fees and expenses) suffered to persons or property as a result of or in any way related to" the work (NYSCEF Doc No 457 Ronson-Coop alteration agreement «fl[ 2, 5, 6, 14, 22, 35).
The Coop defendants and Ronson counter that plaintiffs breach of contract claim should be dismissed because plaintiff is neither a party to nor third-party beneficiary of the alteration agreement. Ronson further argues that, even if plaintiff was a third-party beneficiary of the alteration agreement, the Board gave her "express written consent" for her "wet-over-dry" installations.
There is no dispute that plaintiff is not a party to Ronson's alteration agreement. Thus, the court must determine whether Ronson is a third-party beneficiary of that agreement.
"'[W]hen parties set down their agreement in a clear, complete document, their writing should as a rule be enforced according to its terms'" (Signature Realty, Inc. v Tallman, 2 NY3d 810, 811 [2004], quoting R/S Assoc, v New York Job Dev. Autk, 98 N.Y.2d 29, 32 [2002J, rearg denied 98 N.Y.2d 693 [2002J; see also W. W. W. Assoc, v Giancontieri, 77 N.Y.2d 157, 162 [1990]).
Whether a contract provision is ambiguous is a question of law for the court to decide (W. W. W. Assoc, 11 N.Y.2d at 162). Generally, a contract provision is unambiguous if "on its face [it] is reasonably susceptible of only one meaning" (Greenfield v Philles Records, 98 N.Y.2d 562, 570 [2002]).
"In construing a contract, one of a court's goals is to avoid an interpretation that would leave contractual clauses meaningless" (Two Guys from Harrison-N.Y.v S.F.R. Realty Assoc., 63 N.Y.2d 396, 403 [1984]). "[T]he aim [of the court] is a practical interpretation of the expressions of the parties to the end that there be a realization of [their] reasonable expectations" (Sutton v East Riv. Sav. Bank, 55 N.Y.2d 550, 555 [1982]).
A party asserting third-party beneficiary rights must establish:
"(1) the existence of a valid and binding contract between other parties, (2) that the contract was intended for [its] benefit, and (3) that the benefit to [it] is sufficiently immediate, [rather than incidental, ] to indicate the assumption by the contracting parties of a duty to compensate [it] if the benefit is lost"(Mandarin Trading Ltd. v Wildenstein, 16NY3d 173, 182 [2011] [internal quotation marks and citation omitted]). "[A] party claiming to be a third-party beneficiary has the burden of demonstrating an enforceable right" (Alicea v City of New York, 145 A.D.2d 315, 317 [1st Dept 1988]). The Court of Appeals has "sanctioned a third-party's right to enforce a contract in two situations: [1] when the third party is the only one who could recover for the breach of contract or [2] when it is otherwise clear from the language of the contract that there was 'an intent to permit enforcement by the third party'" (Dormitory Auth. of the State of N.Y.v Samson Constr. Co., 30 N.Y.3d 704, 710 [2018], quoting Fourth Ocean Putnam Corp. v Interstate Wrecking Co., 66N.Y.2d38, 45[1985]).
Here, Ronson's alteration agreement contains a clause entitled "No Third-Party Beneficiaries," which provides that "No person or entity not a party to this Agreement, including any other shareholder in the Corporation, shall be deemed a third-party beneficiary hereunder nor, in pursuing claims against the Shareholder or the Corporation that are parties to this Apartment Alteration Agreement, shall this Agreement form the basis for any claim by any person or entity not a party to the agreement" (NYSCEF Doc No. 457, Ronson-Coop alteration agreement f 45 [emphasis supplied]). This unambiguous language is sufficient to negate any intent to permit enforcement by third parties. Thus, plaintiff is not a third-party beneficiary of the alteration agreement (see Freidman v New York City Taxi & Limousine Commn., 139 A.D.3d 405, 406 [1st Dept 2016]; Greece Cent. School Dist. v Tetra Tech Engrs., Architects & Landscape Architects, P.C, 78 A.D.3d 1701, 1702 [4th Dept 2010]; Adelaide Prods., Inc. v BKN Intl. AG, 38 A.D.3d 221, 226 [1st Dept 2007]; Musk v 13-21 E. 22ndSt. Residence Corp., 2012 NY Slip Op 33021 [U], at *13 [Sup Ct, NY County 2012] [plaintiff was "clearly not an intended third-party beneficiary of the Alteration Agreement as a whole, as the agreement was not executed for her benefit"]).
Reading the contract provisions together in context. Ronson is required to indemnify other shareholders in the building, including plaintiff, pursuant to the alteration agreement, but plaintiff cannot bring a claim seeking enforcement of the alteration agreement. In this court's view, plaintiffs interpretation would render the alteration agreement's language "No person ... not a party to this Agreement, including any other shareholder in the Corporation" meaningless.
Diamond Castle Partners IVPRC, L.P. v IAC/Inter Active Corp. (82 A.D.3d 421 [1st Dept 2011]) and Board of Mgrs. of Alfred Condominium v Carol Mgt. (214 A.D.2d 380 [1st Dept 1995], Iv dismissed 87 N.Y.2d 942 [1996]), relied upon by plaintiff, are distinguishable, as the alteration agreement herein does not contain conflicting clauses regarding third-party beneficiaries (see Freidman, 139 A.D.3d at 406). The no-beneficiary clause in Diamond Castle limited enforcement of the agreement to the undefined term "parties," and the Court found that the plaintiffs had standing in light of the numerous contract provisions granting them enforceable rights (Diamond Castle Partners IV PRC, L.P., 82 A.D.3d at 422).
Although plaintiff seeks specific performance of Ronson's alteration agreement, it is well settled that "specific performance is an equitable remedy for breach of contract, rather than a separate cause of action" (Cho v 401-403 57th St. Realty Corp., 300 A.D.2d 174, 175 [1st Dept 2002]). Plaintiffs specific performance claim stands and falls with her breach of contract claim. In any event, specific performance will not be ordered where money damages "would be adequate to protect the expectation interest of the injured party" (Sokoloff v Harriman Estates Dev. Corp., 96 N.Y.2d 409, 415 [2001], quoting Restatement [Second] of Contracts § 359 [1]). "The decision whether to grant or deny the remedy of specific performances lies within the sound discretion of the court and should not be granted 'where it would cause unreasonable hardship or injustice'" (Rha v Blangiardo, 189 A.D.3d 1098, 1099 [2d Dept 2020], quoting McGinnis v Cowhey, 24 A.D.3d 629, 629 [2d Dept 2005]). Under the circumstances, the court finds that specific performance directing the removal of the powder room, laundry room, and maid's bathroom would be unwarranted.
In light of the above, the Coop defendants and Ronson are entitled to dismissal of the breach of contract and specific performance claims against them.
C. The Coop Defendants' Affirmative Defense Concerning the Business Judgment Rule/Plaintiffs Breach of Fiduciary Duty Claim
Plaintiff moves for summary judgment dismissing the Coop defendants' tenth affirmative defense asserting that their actions are protected by the business judgment rule. Plaintiff asserts that the business judgment rule is inapplicable because: (1) the Board did not follow the policies, rules, and procedures of the Coop, as outlined in the alteration agreement; (2) the Board treated Ronson differently from other shareholders throughout her application process, during demolition of her apartment's interior in 2008, and throughout her renovation project in 2009 and 2010; and (3) the proprietary lease imposes a reasonableness standard for approval of renovations.
The Coop defendants contend, in their cross motion, that the Board did not owe plaintiff a fiduciary duty, the breach of fiduciary duty claim is untimely, and that its approval of Ronson's alteration agreement is protected by the business judgment rule.
Contrary to the Coop defendants' contention, it is well settled that the board of directors of a residential cooperative corporation owes a fiduciary duty to its shareholders (Bryan v West 81 St. Owners Corp., 186 A.D.2d 514, 515 [1st Dept 1992] ["The directors of the co-op owe a fiduciary duty to plaintiffs-shareholders, requiring the directors to act solely in the best interests of the shareholders"]). On the other hand, "'a corporation does not owe fiduciary duties to its members or shareholders'" (Peacock v Herald Sq. Loft Corp., 67 A.D.3d 442, 443 [1st Dept 2009], quoting Hyman v New York Stock Exch., Inc., 46 A.D.3d 335, 337 [1st Dept 2007] [emphasis added]). Plaintiffs breach of fiduciary duty claim is asserted against the Board, not the Coop.
The court must next determine whether there is sufficient support for whether the Board breached a fiduciary to plaintiff. As the Court of Appeals has instructed,
(Matter of Levandusky v One Fifth Ave. Apt. Corp., 75 N.Y.2d 530, 537-538 [1990] [internal quotation marks and citation omitted]; see also Auerbach v Bennett, 47 N.Y.2d 619, 629 [1979]). The rule requires courts to "exercise restraint and defer to good faith decisions made by boards of directors in business settings" (Lome v 50 Madison Ave. LLC, 65 A.D.3d 879, 880 [1st Dept 2009] [internal quotation marks and citation omitted]). "To trigger further judicial scrutiny, an aggrieved shareholder-tenant must make a showing that the board acted (1) outside the scope of its authority, (2) in a way that did not legitimately further the corporate purpose, or (3) in bad faith" (40 W. 67th St. v Pullman, 100 N.Y.2d 147, 155 [2003])."[T]he business judgment rule prohibits judicial inquiry into the actions of corporate directors taken in good faith and in the exercise of honest j udgment in the lawful and legitimate furtherance of corporate purposes. So long as the corporation's directors have not breached their fiduciary obligation to the corporation, the exercise of [their powers] for the common and general interests of the corporation may not be questioned, although the results show that what they did was unwise or inexpedient"
"A showing of unequal treatment is sufficient" to allege bad faith (Barbour v Knecht, 296 A.D.2d 218, 224 [1st Dept 2002]).
Plaintiff argues that the Board breached the alteration agreement by failing to issue "express written consent" for the three "wet-over-dry" installations, by failing to issue "specific prior written approval" for the maid's bathroom, and by failing to make Ronson comply with the alteration agreement after her contractors damaged her apartment (NYSCEF Doc No. 764 at 9-10). It is true that the business judgment rule is not a defense to a breach of contract claim (see Whalen v 50 Sutton Place S. Owners, 276 A.D.2d 356, 357 [1st Dept 2000] [breach of alteration agreement not protected by business judgment rule]; Dinicu v Groff Studios Corp., 257 A.D.2d 218, 224 [business judgment rule did not protect cooperative corporation from alleged breach of proprietary lease]). However, as noted previously, plaintiff is not a party to or third-party beneficiary of Ronson's alteration agreement. And, plaintiff does not point to any provision of the bylaws or proprietary lease showing that the Board acted outside the scope of its authority (see Vincent Di Lorenzo, New York Condominium and Cooperative Law § 12.4 [2d ed] [governing documents for a cooperative housing development are "the certificate of incorporation of the cooperative corporation, the by-laws or the proprietary lease"]). Indeed, the alteration agreement provides that "[t]he Shareholder "s failure to comply with any provisions shall be deemed a breach of the provisions of the [proprietary] Lease, pursuant to which the Corporation's consent has been granted . . ." (NYSCEF Doc No. 457 f 33 [emphasis added]).
While plaintiff argues that the Board treated her differently from other shareholders, i.e., failed to enforce the alteration agreement, she has not demonstrated that the Board acted in bad faith (cf. Smolinsky v 46 Rampasture Owners, 230 A.D.2d 620, 622 [1st Dept 1996]; Aronson v Crane, 145 A.D.2d 455, 456 [2d Dept 1988]). The Board relied on the Blum defendants before permitting the work to proceed, and Board members testified that there are numerous instances of "wet-over-dry" installations throughout the building (NYSCEF Doc No. 584, Hill tr at 78-81, 111-112; NYSCEF Doc No. 587, L'Esperance tr at 71, 80-82, 99, 172-173; NYSCEF Doc No. 590, Amon tr at 61, 88, 172; NYSCEF Doc No. 559, Mulhado tr at 65, 117).
Plaintiff argues that the business judgment rule does not apply because the proprietary lease imposes a reasonableness standard for consent to proposed alterations (see e.g. Rosenthal v One Hudson Park, 269 A.D.2d 144, 145 [1st Dept 2000]). Nevertheless, plaintiff is not challenging the Board's denial of consent to alterations or any terms or conditions imposed by the Board. The Board approved Ronson's alteration project (NYSCEF Doc No. 416).
Accordingly, plaintiff has failed to come forth with sufficient evidence to demonstrate that the Board's decision to approve, or failure to enforce, Ronson's alteration agreement was in bad faith, outside the scope of its authority, or did not legitimately further a corporate purpose (see Matter of Levandusky, 75 N.Y.2d at 537-538).
In light of the above, the branch of plaintiff s motion seeking dismissal of the affirmative defense of the business judgment rule is denied, and plaintiffs breach of fiduciary duty claim is dismissed.
D. Plaintiff's Breach of the Implied Warranty of Habitability, Partial Constructive Eviction, and Breach of the Covenant of Quiet Enjoyment Claims
Plaintiff moves for summary judgment on the issue of liability on her implied warranty of habitability, partial constructive eviction, and breach of the covenant of quiet enjoyment claims against the Coop. Specifically, plaintiff contends that portions of her apartment were rendered uninhabitable due to the water leaks and other damage.
In their cross motion, the Coop defendants contend that plaintiffs warranty of habitability claim fails because she refused the Coop's attempts to make repairs to her apartment. In addition, the Coop defendants argue that this claim must be dismissed, since plaintiff spent a majority of time in her Pennsylvania residence and her Florida home. Further, the Coop defendants maintain that her constructive eviction claim may only be asserted defensively.
The warranty of habitability provides that:
(Real Property Law § 235-b [1])."the occupants of such premises shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety. When any such condition has been caused by the misconduct of the tenant or lessee or persons under his direction or control, it shall not constitute a breach of such covenants and warranties"
(Solow v Wellner, 86 N.Y.2d 582, 587-588 [1995], quoting Real Property Law § 235-b). The warranty of habitability applies to shareholders of cooperative apartments (Frisch v Bellmarc Mgt., 190 A.D.2d 383, 384-385 [1st Dept 1993]). Where there has been a breach of the implied warranty of habitability, the court may award an abatement of rent and injunctive relief directing the breach to be remedied (Bartley v Walentas, 78 A.D.3d 310, 313 [1st Dept 1980])."Pursuant to Real Property Law 235-b, every residential lease contains an implied warranty of habitability which is limited by its terms to three covenants: (1) that the premises are 'fit for human habitation', (2) that the premises are fit for 'the uses reasonably intended by the parties', and (3) that the occupants will not be subjected to conditions that are 'dangerous, hazardous or detrimental to their life, health or safety'"
"To make out a prima facie case of breach of the covenant of quiet enjoyment, a tenant must establish that the landlord's conduct substantially and materially deprived the tenant of the beneficial use and enjoyment of the premises" (Jackson v Westminster House Owners, Inc., 24 A.D.3d 249, 250 [1st Dept 2005], Iv denied 7 N.Y.3d 704 [2006], citing Barash v Pennsylvania Term. Real Estate Corp., 26 N.Y.2d 77, 82-83 [1970]). "[I]n actions for damages for breach of the covenant of quiet enjoyment, a tenant must show an ouster, or if the eviction is constructive, an abandonment of the premises" (Schwartz v Hotel Carlyle Owners Corp., 132 A.D.3d 541, 541 [1st Dept 2015]). Moreover, a tenant may assert as a defense to nonpayment the doctrine of partial constructive eviction (Minjak Co. v Randolph, 140 A.D.2d 245, 249 [1st Dept 1998]; Elkman v Southgate Owners Corp., 233 A.D.2d 104, 105 [1st Dept 1996]).
In this case, plaintiff has demonstrated prima facie that the water damage and the vibrations from the work rendered one bedroom and the kitchen unfit for the uses reasonably intended by the parties, and that she has abandoned these rooms of her apartment (see Goldhirsch v St. George Tower & Grill Owners Corp., 142 A.D.3d 1044, 1045 [2d Dept 2016]). Plaintiff states that '"Because of the damage, I have been unable to use Juliet's bedroom and my kitchen, to this day. When I do come to the West Maisonette, I do not use Juliet's bedroom or the kitchen at all. I have abandoned them" (NYSCEF Doc No. 453, plaintiff aff, ¶ 83).
The Coop defendants have failed to raise an issue of fact as to their liability. While the Coop defendants argue that plaintiff refused multiple attempts to repair her apartment, the Coop defendants do not provide any evidence to support this assertion. In any event, there is no dispute that the water damage and vibrations were not caused by plaintiff, but rather by the contractors performing work in Ronson's apartment.
Contrary to the Coop defendants' argument, the fact that plaintiff has not lived in the apartment as her primary residence does not preclude her recovery for breach of the implied warranty of habitability or breach of the covenant of quiet enjoyment. The cases cited by the Coop defendants do not stand for that proposition (see Reinhard v Connaught Tower Corp., 150 A.D.3d 431, 432 [1st Dept 2017], Iv dismissed 30 N.Y.3d 1040 [2017] [reversing finding of liability after nonjury trial based upon odor of cigarettes where "plaintiff lived in Connecticut, near her workplace, and only intended to stay in the apartment occasionally"]; Leventritt v 520 E. 86th St., 266 A.D.2d 45, 46 [1st Dept 1999], Iv denied 94 N.Y.2d 760 [2000] [finding that "(t)he trial court properly held that the amount of plaintiff s damages for defendant's breach of the warranty of habitability pursuant to Real Property Law § 235-b was the difference between the maintenance paid by plaintiff and the rental value of the premises during the period of the breach"]; Frisch, 190 A.D.2d at 385 [warranty of habitability does not apply to condominiums]; Halkedis v Two E. End Ave. Apt. Corp., 161 A.D.2d 281, 282 [1st Dept 1990], appeal denied 76 N.Y.2d 711 [1990] [purchaser failed to establish the extent of damage or reasonable cost of repair]). These issues go to plaintiffs damages, which are issues for trial. In sum, plaintiff is entitled to summary judgment as to liability on her causes of action for breach of the implied warranty of habitability and breach of the covenant of quiet enjoyment against the Coop. However, as argued by the Coop defendants, since partial constructive eviction may only be asserted defensively, this claim is dismissed.
E. Plaintiffs Negligence Claim
Plaintiff moves for summary judgment as to the issue of Ronson's liability for negligence. According to plaintiff, Ronson owed her downstairs neighbor a duty of care, and breached that duty when her agents, the contractors that she hired to perform the renovation work, committed negligent actions and caused property damage in her apartment.
Ronson argues that plaintiffs negligence claim against her is untimely, since plaintiff did not commence this action until November 2012, after the statute of limitations had already run. Further, Ronson maintains that there is no proof that she supervised or controlled the performance of Uberto's work.
The Blum defendants also move for summary judgment dismissing plaintiffs negligence claim against them. The Blum defendants assert that they did not owe plaintiff a duty of care, did not breach any duty, did not cause plaintiffs damages, and that plaintiff did not sustain any damages.
To establish a claim of negligence, the plaintiff must show that the defendant owed a duty of care to the plaintiff, breach of that duty, that such breach was the proximate cause of the resulting injury, and actual loss, harm or damage (Baptiste v New York City Tr. Auth., 28 A.D.3d 385, 386 [1st Dept 2006]; Merino v New York City Tr. Auth., 218 A.D.2d 451, 457 [1st Dept 1996], affd 89 N.Y.2d 824 [1996]).
Ronson
"[A]s a general rule, a principal is not liable for the acts of an independent contractor because, unlike the master-servant relationship, principals cannot control the manner in which independent contractors perform their work" (Sampedro v Ellwood Realty, LLC, 163 A.D.3d 441, 442 [1st Dept 2018], quoting Saini v Tonju Assoc., 299 A.D.2d 244, 245 [1st Dept 2002]).
"Control of the method and means by which the work is to be done ... is the critical factor in determining whether one is an independent contractor or an employee for the purposes of tort liability" (Berger v Dykstra, 203 A.D.2d 754, 754 [3d Dept 1994], Iv dismissed 84 N.Y.2d 965 [1994]). Typically, the determination of whether one is an independent contractor is a question of fact (Lazo v Mak's Trading Co., 199 A.D.2d 165, 166 [1st Dept 1993], aff'd 84 N.Y.2d 896 [1994]). "However, where the evidence on the issue of control presents no conflict, the matter may properly be determined by the court as a matter of law" (Melbourne v New York Life Ins. Co., 271 A.D.2d 296, 297 [1st Dept 2000]). This is such a case.
Here, plaintiff has failed to establish prima facie entitlement to summary judgment on her negligence claim against Ronson. While plaintiff contends that Ronson's contractors were her agents, she has not demonstrated that Ronson controlled the means and methods in which they performed their work.
Ronson, though, has met her burden. Ronson avers that "I was in Europe during the work in the summer of 2009. I was not aware of the manner in which Uberto Ltd. performed its work in my apartment in 2009 or in 2010. I had no involvement in supervising or directing how the work was performed. At some point I was told that Uberto Ltd. was using jackhammers or sledgehammers to do the work. I have no personal knowledge as to whether this is actually so and I never directed Uberto to use these tools" (NYSCEF Doc No. 383, Ronson aff, ¶ 12). Additionally, section 3.3.1 of the AIA A201-2007 General Conditions, which was part of Uberto's contract, states that "[t]he Contractor shall be solely responsible for, and have control over, construction means, methods, techniques and for coordinating all portions of the Work ... ." (NYSCEF Doc No. 423 § 3.3.1).
Plaintiff and Uberto have failed to raise an issue of fact as to whether Uberto was Ronson's agent. To the extent that Uberto argues that Ronson supervised Uberto's work herself and through her son, Stanley Shashoua, the court finds that such supervision amounts to general supervision. The fact that Ronson was onsite during construction, and that her son expressed frustration over work stoppages, and discussed an extension of time to complete the work, does not show control of the means and methods of Uberto's work. "[T]he mere retention of general supervisory powers over independent contractors cannot be a basis for the imposition of liability for their acts" (Lazo, 199 A.D.2d at 166). Furthermore, plaintiff and Uberto do not argue that any of the exceptions to the general rule apply (see Kleeman v Rheingold, 81 N.Y.2d 270, 273-27'4 [1993]; Rosenberg v Equitable Life Assur. Socy. of U.S., 79 N.Y.2d 663, 668 [1992], rearg dismissed 82 N.Y.2d 865 [1993]). As a result, Ronson is entitled to dismissal of plaintiff s negligence claim against her (see Marino v Vega, 12 A.D.3d 329, 330 [1st Dept 2004] [distributor did not exercise sufficient control over actual delivery process to be vicariously liable where independent contractor deliverer agreement "showed nothing more than the most general supervisory control"]).
Blum Defendants
The Blum defendants contend that they did not owe a duty of care to plaintiff. The existence and scope of an alleged tortfeasor's duty is a legal issue for the court to resolve in the first instance (Sanchez v State of New York, 99 N.Y.2d 247, 252 [2002]). '" [I]n the absence of duty, there is no breach and without a breach there is no liability"' (Sheila C. v Povich, 11 A.D.3d 120, 125 [1st Dept 2004], quoting Pulka v Edelman, 40 N.Y.2d 781, 782 [1976], rearg denied 41 N.Y.2d 901 [1977]). It is the law of the case that the Blum defendants owe a duty of care to plaintiff (see Martin v City of Cohoes, 37 N.Y.2d 162, 165 [1975], rearg denied 37 N.Y.2d 817 [1976] ["The doctrine of the 'law of the case' is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned"]). On April 18, 2013, Justice Edmead held that the Blum defendants owed a duty of care to plaintiff (NY SCEF Doc No. 22 at 1-2). This court "may not review or overrule an order of another Judge of co-ordinate jurisdiction in the same action . . ." (Forbush v Forbush, 115 A.D.2d 335, 336 [4th Dept 1985], appeal dismissed 67 N.Y.2d 756 [1986]).
Moreover, the Blum defendants have failed to demonstrate that they did not breach any duty of care. Ordinarily, "the very question of negligence is itself a question for jury determination" (Ugarriza v Schmieder, 46 N.Y.2d 471, 474 [1979]). Rider 1 of Ronson's alteration agreement states that work was not to commence "until the building Superintendent and/or the Corporation's reviewing architect or engineer . . . have made an inspection of the Adjacent Premises and has recorded their condition, with photographs or video recording if deemed necessary, and attached a report hereto" (NYSCEF Doc No. 344 at 40). Blum admits that he never inspected plaintiffs apartment (NYSCEF Doc No. 360, Blum aff, ¶ 19). Moreover, there are questions of fact as to whether the Blum defendants fully informed the Board about Ronson's "wet-over-dry" installations (see e.g. NYSCEF Doc No. 339, Hill tr at 98 [Board president stated that he had no recollection of Blum telling him that the powder room was going to be installed over a bedroom]; NYSCEF Doc No. 345, Amon tr at 76, 82 [Board member did not remember discussions about powder room or change in footprint of Ronson's apartment]; NYSCEF Doc No. 342, Melhado tr at 67 [Board member first became aware of powder room issue after there was a leak]).
Although the Blum defendants blame Uberto for causing plaintiffs property damage, the court finds this argument unpersuasive. In a negligence case, '"the plaintiff must generally show that the defendant's negligence was a substantial cause of the events which produced the injury'" (Maniscalco v New York City Tr. Auth, 95 A.D.3d 510, 512 [1st Dept 2012], quoting Derdiarian v Felix Contr. Corp., 51 N.Y.2d 308, 315 [1980], rearg denied 52 N.Y.2d 784 [1980]). "Plaintiff need not demonstrate, however, that the precise manner in which the accident happened, or the extent of the injuries, was foreseeable" (Derdiarian, 51 N.Y.2d at 315). "There may be one, or more than one, substantial factor" (Ohdan v City of New York, 268 A.D.2d 86, 89 , Iv denied 95 N.Y.2d 769 [2000], citing 1A PJI 2:71). "As a general rule, the question of proximate cause is to be decided by the finder of fact. . ." (Derdiarian, 51 N.Y.2d at 312). It is for the jury to determine whether the Blum defendants' failure to inspect plaintiffs apartment and inform the Board of wet-over-dry issues was a proximate cause of the property damage.
To the extent that the Blum defendants argue that plaintiff has sustained no damages, they have failed to "establish[] an entitlement to a collateral source reduction of an award for past or future economic loss" (Kihl v Pfeffer, 47 A.D.3d 154, 164 [2d Dept 2007]). The Blum defendants rely on a deposition transcript from an insurance adjuster in the action captioned Federal Ins. Co. v Uberto, Ltd., Index No. 153542/12 (Sup Ct, NY County) (NYSCEF Doc No. 356). Even if this testimony is admissible, the fact that plaintiff did not express her displeasure with the amount that she received does not show that she did not sustain any damages (NYSCEF Doc No. 356, Simmons tr at 84, 92-93).
Therefore, the Blum defendants are not entitled to dismissal of plaintiff s negligence claim.
F. Plaintiffs Private Nuisance Claim
Plaintiff moves for summary judgment on the issue of the Coop and Ronson's liability on her nuisance claim. The Coop defendants argue that plaintiffs claim is time-barred, and the Coop may not be held responsible for the work on a nuisance theory. Similarly, Ronson maintains that plaintiffs nuisance claim is time-barred, and that there is insufficient evidence to hold her liable on a nuisance theory.
"[O]ne is subject to liability for a private nuisance if his [or her] conduct is a legal cause of the invasion of the interest in the private use and enjoyment of land and such invasion of the interest is (1) intentional and unreasonable, (2) negligent or reckless, or (3) actionable under the rules governing liability for abnormally dangerous conditions or activities" (Copart Indus, v Consolidated Edison Co., Inc., 41 N.Y.2d 564, 570 [1977], rearg denied 42 N.Y.2d 1102 [1977]). A nuisance may be based upon "an intentional and unreasonable, negligent or reckless invasion upon the plaintiffs interest in the use and enjoyment of his property" (Boll v Town of Kinderhook, 99 A.D.2d 898, 899 [3d Dept 1984]).
The Coop
The court turns to whether the Coop may be held liable for the alleged nuisance.
Generally, "a cause of action for nuisance does not lie against a landlord who 'did not create the nuisance' and 'who surrendered control of the premises to a tenant'" (Clarke v 6485 & 6495 Broadway Apt, Inc., 122 A.D.3d 494, 494-495 [1st Dept 2014], quoting Bernard v 345 E. 73rd Owners Corp., 181 A.D.2d 543 [1st Dept 1992]). It is undisputed that the Coop did not cause the water leaks and other damage in plaintiffs apartment, and that the work was being performed within Ronson's apartment. Therefore, the Coop is entitled to dismissal of plaintiff s nuisance claim.
Ronson
Here, there are questions of fact as to whether Ronson created a nuisance by installing "wet-over-dry" installations in her apartment (see Copart Indus., 41 N.Y.2d at 570). Although Ronson argues that the Board approved the renovation work and that there are multiple instances of "wet-over-dry" installations in the building, it is for the jury to determine whether Ronson acted reasonably under the circumstances, and whether Ronson's "wet-over-dry" installations substantially prevent plaintiff from using and enjoying her apartment. Plaintiff alleges that she has abandoned a bedroom and the kitchen of her apartment, and notified Blum on numerous occasions about the leaks in August 2009, January 2010, and April 2010 (NYSCEF Doc No. 453, plaintiff aff, %% 26-35, 64-66, 67-69, 83). In addition, there was a leak in 2016, which apparently came through the third-floor area where the maid's bathroom and laundry rooms are located (NYSCEF Doc No. 690 ¶ 52). Moreover, in view of this evidence, Ronson has failed to demonstrate, as a matter of law, that she did not engage in "a pattern of continuity and recurrence of objectionable conduct" (Berenger v 261 West LLC, 93 A.D.3d 175, 182 [1st Dept 2012]; see also Duane Reade v Reva Holding Corp., 30 A.D.3d 229, 236-237 [1st Dept 2006J). However, to the extent that Uberto's work constituted a nuisance, Ronson has shown that she cannot be held liable for it on a nuisance theory (see NY PJI 3:16, Comment, citing Murphy v City of New York, 128 A.D. 463, 466 [1st Dept 1908], affd in part, revd in part 203 NY 106 [1911] ["the hirer of an independent contractor is not liable when the nuisance lies not in the work contracted for, but in the means adopted by the contractor for carrying it out"]). Accordingly, Ronson is not entitled to dismissal of plaintiff s nuisance claim. Plaintiff has failed to meet her burden on her nuisance claim against Ronson, since it is for the jury to determine whether Ronson created a nuisance under the circumstances. Therefore, plaintiff is not entitled to summary judgment on her nuisance claim against Ronson.
Ronson has failed to meet her burden that the nuisance claim is untimely. According to Ronson, the events forming the basis for the nuisance claim occurred in June 2009, August 2009 and January 2010, and plaintiff "commenced this action by service of a Summons and Complaint on or about November 30, 2012" (NYSCEF Doc No. 381 f 1). As plaintiff argues, she commenced this action by filing a summons with notice (NYSCEF Doc No. 1). Under CPLR 304 (a), an action is commenced by, inter alia, filing a summons with notice. Pursuant to CPLR 203 (c), "[i]n an action which is commenced by filing, a claim asserted in the complaint is interposed against the defendant... when the action is commenced." When a pleading is amended, "[a] claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading" (CPLR 203 [f]). Notably, Ronson does not argue that the summons with notice fails to give notice of the occurrences intended to be proved. In any event, even if the court applied the date of March 5, 2013 (the date that plaintiff filed her amended complaint which first contained a nuisance claim) (NYSCEF Doc No. 17), plaintiffs nuisance claim is timely. There is no dispute that leaks occurred in April 2010 and November 2016.
Blum Defendants
The Blum defendants have failed to meet their prima facie burden as to whether they may be held liable to plaintiff for a private nuisance. Notably, the Blum defendants do not argue that they cannot be liable for a nuisance (see Penn Cent. Transp. Co. v Singer Warehouse & Trucking Corp., 86 A.D.2d 826, 828 [1st Dept 1982], appeal dismissed 56 N.Y.2d 802 [1982] ["Every one who creates a nuisance or participates in the creation or maintenance thereof is liable for if] [internal quotation marks and citation omitted]). In addition, the court rejects the Blum defendants' argument that plaintiff cannot establish that any interference was substantial or intentional. "[E]xcept for the issue of whether the plaintiff has the requisite property interest, each of the other elements is a question for the jury, unless the evidence is undisputed" (Weinberg v Lombardi, 217 A.D.2d 579, 579 [2d Dept 1995]). Furthermore, the Blum defendants have failed to demonstrate that their actions or the actions of Ronson" s contractors were not intentional for purposes of a private nuisance claim. "An invasion of another's interest in the use and enjoyment of land is intentional when the actor (a) acts for the purpose of causing it; or (b) knows that it is resulting or is substantially certain to result from his conduct" (Copart Indus., 41 N.Y.2d at 571, quoting Restatement of Torts § 825). In any case, a nuisance claim may be based on negligent conduct. In addition, there are questions of fact as to whether the Blum defendants' actions were a legal cause of the nuisance. Moreover, even if plaintiff was comparatively negligent in waiting years to repair her apartment, such delay would only limit her damages, but would not bar her recovery (see NY PJI 3:16, Comment). Accordingly, the Blum defendants are not entitled to summary judgment on plaintiffs nuisance claim.
G. Plaintiffs Conversion Claim
Plaintiff moves for summary judgment on her conversion claim against the Coop and Ronson. The Coop defendants and Ronson maintain that they did not destroy her property and did not deny plaintiff access to her apartment.
"A conversion takes place when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person's right of possession" (Reifv Nagy, 175 A.D.3d 107, 120 [1st Dept 2019], Iv dismissed 35 N.Y.2d 986 [2020] [internal quotation marks and citation omitted]). "Two key elements of conversion are (1) plaintiffs possessory right or interest in the property; and (2) defendant's dominion over the property or interference with it, in derogation of plaintiff s rights" (Colavito v New York Organ Donor Network, Inc., 8 N.Y.3d 43, 50 [2006][citations omitted]).
Here, there is no evidence that the Coop or Ronson assumed or exercised control over plaintiffs personal property, thereby interfering with her right of possession (see Artalyan, Inc. v Kitridge Realty Co., Inc., 52 A.D.3d 405, 406 [conversion claim was correctly dismissed where defendants did not have "control and dominion over plaintiffs' property"]; Zion Tsabbar, D.D.S., P.C. v Hirsch, 266 A.D.2d 91, 92 [1st Dept 1999] [no conversion where "defendants never claimed or exercised dominion and control over plaintiffs property"]). Rather, plaintiff asserts that her apartment was rendered uninhabitable, and that her personal property was damaged or destroyed by Ronson's contractors. Moreover, as noted above, the evidence indicates as a matter of law that Uberto was not Ronson's agent. Therefore, the Coop and Ronson are entitled to dismissal of plaintiff s conversion claim.
H. Plaintiff s Aiding and Abetting a Breach of Fiduciary Duty Claim
The Blum defendants move for summary judgment dismissing plaintiffs aiding and abetting a breach of fiduciary duty claim. According to the Blum defendants, the Board did not breach any fiduciary duty owed to plaintiff, they did not provide any substantial assistance to the Board, and plaintiff sustained no damages. Plaintiff argues, in opposition, that the business judgment rule does not apply to the Board's actions, and that there are questions of fact as to substantial assistance and damages.
"A claim for aiding and abetting a breach of fiduciary duty requires: (1) a breach by a fiduciary of obligations to another, (2) that the defendant knowingly induced or participated in the breach, and (3) that plaintiff suffered damages as a result" (Kaufman v Cohen, 307 A.D.2d 113, 125 [1st Dept 2003]). "A person knowingly participates in a breach of fiduciary duty only when he or she provides 'substantial assistance' to the primary violator" (id. at 126).
(Monaghan v Ford Motor Co., 71 A.D.3d 848, 850 [2d Dept 2010], quoting Kaufman, 307 A.D.2d at 126).'"Substantial assistance occurs when a defendant affirmatively assists, helps conceal or fails to act when required to do so, thereby enabling the breach to occur. .. However, the mere inaction of an alleged aider and abettor constitutes substantial assistance only if the defendant owes a fiduciary duty directly to the plaintiff"
In this case, the Blum defendants are entitled to summary judgment dismissing plaintiffs aiding and abetting a breach of fiduciary duty claim. As noted above, the record establishes that the Board did not breach a fiduciary duty to plaintiff. Absent a breach of fiduciary duty, this claim is untenable.
Accordingly, plaintiffs aiding and abetting a breach of fiduciary duty claim against the Blum defendants is dismissed.
I. Plaintiffs Tortious Interference with Contract Claim
Next, the Blum defendants argue that plaintiffs tortious interference with contract claim fails because: (1) plaintiff has failed to identify any contract that they tortiously interfered with; (2)plaintiff has no standing to assert any rights under Ronson's alteration agreement; and (3) the Blum defendants did not intentionally procure the breach of any contract. Plaintiff asserts, in opposition, that there are issues of fact as to each element.
"A claim of tortious interference [with contract] requires proof of (1) the existence of a valid contract between plaintiff and a third party; (2) the defendant's knowledge of that contract; (3)the defendant's intentional procuring of the breach; and (4) damages" (Foster v Churchill, 87 N.Y.2d 744, 749-750 [1996]; see also Hoag v Chancellor, Inc., 246 A.D.2d 224, 228 [1st Dept 1988]). Additionally, the plaintiff must prove that the breach would not have occurred absent the defendant's conduct (see Macy ' Inc. v Martha Stewart Living Omnimedia Inc., Ill. A.D.3d 48, 55 [1st Dept 2015], citing White Plains Coat & Apron Co., Inc. v Cintas Corp., 8 N.Y.3d 422, 426 [2007]).
As discussed above, plaintiff is not a party to, nor a third-party beneficiary of the alteration agreement. Accordingly, plaintiffs tortious interference with contract claim against the Blum defendants fails and must be dismissed (see LoPresti v Massachusetts Mui. Life Ins. Co., 30 A.D.3d 474, 476 [2d Dept 2006] [trial court properly dismissed tortious interference with contract claim where "(t)he plaintiff was not a part}-' to, nor a third-party beneficiary of, the contracts with which the respondents allegedly interfered"]).
J. Plaintiffs Request for Punitive Damages
Ronson moves for summary judgment dismissing plaintiffs request for punitive damages. Plaintiff responds that there are questions of fact as to whether she can recover punitive damages from Ronson.
The purpose of punitive damages is not to compensate the injured party, but to punish the tortfeasor and deter similar conduct on the part of others (Ross v Louise Wise Servs., Inc., 8 N.Y.3d 478, 489 [2007]). Thus, "[p]unitive damages are available in a tort action where the wrongdoing is fraudulent or deliberate, presents circumstances of aggravation or outrage, evinces a fraudulent or evil motive, or is in such conscious disregard of the rights of another that is deemed willful and wanton" (Bishop v 59 W. 12th St. Condominium, 66 A.D.3d 401, 402 [1st Dept 2009], citing Prozeralik v Capital Cities Communications, 82 N.Y.2d 466, 479 [1993]).
Applying these principles, there is no evidence that Ronson acted intentionally, with high moral culpability, or willfully disregarded plaintiffs rights (cf. Bishop, 66 A.D.3d at 402 [plaintiff sufficiently alleged intentional and willful disregard of her rights in that defendant condominium board withdrew its prior approval of plaintiffs renovation plan at behest of certain board member at secret meeting where no quorum was present]). Ronson states that she believed that the Board had issued express written consent for her "wet-over-dry" rooms, when she received a letter from Gumley Haft indicating that the Board had approved her renovation project (NYSCEF Doc No. 383, Ronson aff, ¶ 8). Accordingly, plaintiffs request for punitive damages is dismissed.
K. Ronson's Contractual Indemnification Claim Against Uberto
Ronson moves for contractual indemnification from Uberto pursuant to the indemnification provision contained within a Contractor Indemnification and Representation Letter, signed by Uberto's president, which provides as follows:
(NYSCEF Doc No. 426 [emphasis supplied])."The undersigned further agrees to defend, indemnify and hold harmless the Indemnified Parties and all other occupants of the building, against any and all liability, including legal costs and expenses on account of loss of life or injury to any person or damage to property, happening in or arising out of or in any way relating to the performance of the Work. This agreement specifically contemplates full indemnity in the event of liability imposed against the Indemnified Parties, or any of them, without negligence and solely by reason of statute, operation of law or otherwise, and partial indemnity in the event of any actual negligence on the part of any Indemnified Party either causing or contributing to the underlying claim. In that event, indemnification will be limited to any liability imposed over and above that percentage to actual fault, whether by statute, by operation of law, or otherwise"
In opposition to Ronson's motion, Uberto contends that Ronson supervised and controlled its work. In addition, Uberto argues that there are questions of fact as to Ronson's negligence in failing to obtain express written consent from the Board to install "wet-over-dry" installations.
"A party's right to contractual indemnification depends upon the specific language of the relevant contract" (Hanna v Milazzo, 179 A.D.3d 907, 909 [2d Dept 2020]). "[T]he 'intention to indemnify [must] be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances" (Masciotta v Morse Diesel Intl., 303 A.D.2d 309, 310 [1st Dept 2003] [citation omitted]). "In contractual indemnification, the one seeking indemnity need only establish that it was free from any negligence and was held liable solely by virtue of the statutory liability. Whether or not the proposed indemnitor was negligent is a non-issue and irrelevant" (Correia v Professional Data Mgt., 259 A.D.2d 60, 65 [1st Dept 1999]).
Here, Uberto agreed to defend and indemnify Ronson for "all liability, including legal costs and expenses on account of, ., damage to property, happening in or arising out of or in any way relating to the performance of the work" (NYSCEF Doc No. 426). There is no genuine dispute that Uberto was working in Ronson's apartment when vibrations and three leaks occurred (NYSCEF Doc No. 453, plaintiff aff, ¶¶ 8-18, 26-35, 64-69; NYSCEF Doc Nos. 427, 428). Blum also concluded that Ronson's renovation project caused the three leaks (NYSCEF Doc No. 432 ¶ 37). As discussed above, Ronson has shown that she was not negligent. Whether Ronson breached the alteration agreement by failing to obtain "express written consent" from the Board does not raise an issue of fact as to her negligence. Thus, Ronson is entitled to contractual indemnification, including reasonable legal costs and expenses, from Uberto.
Ronson also expressly requests reimbursement of legal fees and expenses.
L. The Blum Defendants' Affirmative Defenses
The Blum defendants move for summary judgment on their affirmative defenses of release, waiver, estoppel, and failure to mitigate damages. The Blum defendants have failed to meet their burden.
Release, Waiver, and Estoppel
Generally, "a valid release constitutes a complete bar to an action on a claim which is the subject of the release" (Centro Empresarial Cempresa S.A. v America Movil, S.A.B. de C. K, 17 N.Y.3d 269, 276 [2011]). "To establish waiver, it is necessary to show that there has been an intentional relinquishment of a known right with both knowledge of its existence and an intention to relinquish it" (Airco Alloys Div. v Niagara Mohawk Power Corp., 76 A.D.2d 68, 81 [4th Dept 1980] [internal quotation marks and citation omitted]). "The elements of estoppel, with respect to the party estopped, (1) conduct which amounts to a false representation or concealment of facts; (2) intention that such conduct will be acted upon by the other party; and (3) knowledge of the real facts" (First Union Nat. Bank v Tecklenburg, 2 A.D.3d 575, 577 [2d Dept 2003]). The Blum defendants have failed to demonstrate the absence of issues of fact with respect to these defenses, including whether a release exists, whether plaintiff intentionally relinquished any known rights, and whether plaintiff falsely represented or concealed facts. Accordingly, the branch of the Blum defendants' motion with respect to these affirmative defenses is denied.
Failure to Mitigate Damages
"A party seeking to avail itself of the affirmative defense of failure to mitigate damages must establish that the injured party failed to make diligent efforts to mitigate its damages, and the extent to which such efforts would have diminished those damages" (Eskenazi v Mackoul, 72 A.D.3d 1012, 1014 [2d Dept 2010]). Although the Blum defendants rely on the fact that plaintiff was paid $301,430.33 from her insurance company, they have not demonstrated plaintiffs lack of diligent efforts to mitigate damages, or to what extent such efforts would have diminished her damages (see id). Therefore, the branch of the Blum defendants' motion as to the failure to mitigate damages defense is denied.
M. Cross Claims and Counterclaims Against the Blum Defendants
The Blum defendants also move for summary judgment on the cross claims and counterclaims for common-law contribution and common-law indemnification as against them.
Contribution
CPLR 1401 provides that "two or more persons who are subject to liability for damages for the same personal injury, injury to property or wrongful death, may claim contribution among them . . ." "The critical requirement for apportionment by contribution under CPLR article 14 is that the breach of duty by the contributing party must have had a part in causing or augmenting the injury for which contribution is sought" (Raquet v Braun, 90 N.Y.2d 177, 183 [1997] [internal quotation marks and citation omitted]). There are questions of fact as to whether the Blum defendants had a part in causing or augmenting plaintiffs injury. Accordingly, the Blum defendants are not entitled to dismissal of the contribution claims.
Common-Law Indemnification
"Indemnity involves an attempt to shift the entire loss from one who is compelled to pay for a loss, without regard to his own fault, to another party who should more properly bear responsibility for that loss because it was the actual wrongdoer" (Trump Vil. Section 3 v New York State Hous. Fin. Agency, 307 A.D.2d 891, 895 [1st Dept 2003], Iv denied 1 N.Y.3d 504 [2003] [internal quotation marks and citation omitted]). '"Since the predicate of common-law indemnity is vicarious liability without actual fault on the part of the proposed indemnitee, it follows that a party who has actually participated to some degree in the wrongdoing cannot receive the benefit of the doctrine'" (Aiello v Burns Intl. Sec. Servs. Corp., 110 A.D.3d 234, 237 [1st Dept 2013], quoting Trustees of Columbia Univ. v Mitchell/Giurgola Assoc, 109 A.D.2d 449, 453 [1st Dept 1985]). As argued by the Blum defendants, they were sued for their own negligence, and not on a theory of vicarious liability. Therefore, the common-law indemnification claims against the Blum defendants are dismissed.
CONCLUSION
Accordingly, it is
ORDERED that the motion (sequence number 012) of defendants Joseph K. Blum Co., LLP and James J. Blum for summary judgment is granted to the extent of dismissing plaintiffs tortious interference with contract claim, aiding and abetting a breach of fiduciary duty claim, and the cross claims and counterclaims for common-law indemnification against them, and is otherwise denied; and it is further
ORDERED that the motion (sequence number 013) of plaintiff for summary judgment is granted to the extent of granting the motion as to liability on her breach of the implied warranty of habitability and breach of the covenant of quiet enjoyment claims as against defendant 6 East 72nd Street Corporation, and is otherwise denied; and it is further
ORDERED that the cross motion of defendants 6 East 72nd Street Corporation, the Board of Directors of 6 East 72nd Street Corporation, and Gumley Haft, Inc. for summary judgment is granted to the extent of dismissing plaintiffs breach of contract claim, specific performance claim, constructive eviction claim, and nuisance and conversion claims as against defendant 6 East 72nd Street Corporation, and breach of fiduciary duty claim, and is otherwise denied; and it is further
ORDERED that the motion (sequence number 014) of defendant/third-party plaintiff Myrna Ronson for summary judgment is granted to the extent of dismissing plaintiffs breach of contract claim, specific performance claim, negligence claim, conversion claim, plaintiffs request for punitive damages, and granting defendant/third-party plaintiff contractual indemnification, including reasonable attorney's fees, against third-party defendant Uberto Ltd., and is otherwise denied.
This constitutes the Decision and Order of the court.