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Boyum v. Condominium

February 22, 2007



Plaintiff Araella Boyum brought this action in Supreme Court, New York County, against Horizon Condominium, Excel Management Services, Inc. (the company that provides building management services for the condominium) and three individuals who were directly involved with the allegedly tortious conduct. Plaintiff alleges four causes of action, each of which appears on its face to sound in state law. They are: first, intentional infliction of emotional distress; second, defamation; third, tortious interference with contractual relations; and fourth tortious interference with prospective economic advantage.

Defendants timely removed the case to federal court, asserting federal question jurisdiction due to the preemptive effect of section 301 of the Labor Management Relations Act of 1947 ("LMRA"), 29 U.S.C. § 185, et seq.

Defendants have not answered, but have moved to dismiss or to compel arbitration.

Plaintiffs have moved to remand. This motion is denied. Defendants' motion to dismiss is granted.

Plaintiff's Factual Allegations

For purposes of deciding this motion, the court will accept the allegations of the complaint as true. The following section is a summary of plaintiff's factual contentions which are drawn from the Verified Complaint originally filed in state court.

1. Plaintiff's Employment at Horizon

Plaintiff worked as a concierge in the Horizon Condominium from 1988 through December 3, 2004, and was a member of the Service Employees International Union, Local 32BJ, AFL-CIO ("Union"). Plaintiff's employment there was pursuant to a series of three-year Collective Bargaining Agreements ("CBAs") each of which is entitled Apartment Building Agreement. The CBAs were entered into between the Union and the Realty Advisory Board on Labor Relations, Inc.

The first ten years of plaintiff's employment (1988-1998) were uneventful. Beginning in 1992 plaintiff's supervisor was defendant Nathan Farber. In December 1995, plaintiff's husband, Zvi Boyum, was offered and accepted employment as a concierge at the Horizon Condominium. Plaintiff alleges that Zvi accepted employment on the condition that he and his wife be permitted to take vacations together and alleges that at least some of the defendants agreed to this condition. Plaintiff and her husband took vacations together in 1996, 1997, 1998, and 1999 without objection by any defendant.

2. Purchase of the Unit

In the middle of 1999, plaintiff and her husband decided to purchase a unit in the Horizon Condominium as an investment property. In June 1999, defendant Howard Oertell, a member of the Horizon Board of Managers, informed plaintiff and her husband that the board had unanimously decided to deny permission to purchase the unit because, as unit owners, plaintiff and her husband would become "the bosses" of the superintendent which would create an impermissible conflict of interest that was prohibited by either the Horizon bylaws or "the law" (Compl. ¶ 16). Oertell did not, however, provide plaintiff or her husband with a copy of any such bylaw or law but he warned them repeatedly that it would be very bad for them if they bought the unit (Id.).

Plaintiff alleges that, according to the Horizon bylaws, the Board of Managers had the option to purchase any unit for sale in the building on the same terms and conditions as contained in any bona fide offer to purchase a unit in the building (¶ 20). Plaintiff and her husband apparently made an offer for the apartment, and the Horizon Board must have elected not to exercise its alleged right under the bylaws. Plaintiff and her husband purchased the unit on August 2, 1999. The complaint does not explain why the Board permitted this transaction to go through when, according to plaintiff's complaint, the Board had decided that they should not do so (¶ 16).

3. Defendants' Conduct Following the Purchase of the Unit

From the time plaintiff and her husband announced their intention to purchase the unit, defendants commenced a "campaign of harassment and intimidation" against them (¶ 23). Plaintiff alleges that defendants engaged in six types of conduct in this regard.

a. Setting Aside an Arbitration Award Arising From the Denial of a Request for Vacation Time

Plaintiff alleges that in 1999, defendants denied plaintiff's request to take a vacation with her husband by citing a "purported rule" prohibiting two employees in the same category from vacationing at the same time. It is unclear whether the denied request, made in 1999, was for a subsequent vacation in 1999 or for a vacation in year 2000. However, since plaintiff alleges she and Zvi had already vacationed together in 1999, the court presumes that this request was in anticipation of a year 2000 vacation. Defendants issued this denial despite the fact that they previously permitted plaintiff and her husband to vacation together, and that Zvi Boyum accepted employment on the condition that he be permitted to vacation with plaintiff (¶ 23(A)).

Plaintiff then took this issue to arbitration and prevailed. Arbitrator Nicholas J. Cooney issued an Opinion and Award in June 2001 making the following findings:

Zvi Boyum was assured that he and his wife would be permitted to take vacations together.

Horizon received notice in June 1999 of the Boyums' intention to purchase a unit at the premises and such news was apparently not well received by Horizon.

Management subsequently issued a memorandum, dated June 31, 1999 stating that, with respect to such vacations by the staff, no more than one person in each work category would be able to take similar time off. The enforcement of such rule seems to have been applicable solely to the Boyums. (Id.) On the basis of these findings, the arbitrator directed defendants to permit plaintiff and her husband to take vacations together (Id.).

According to the complaint, defendants then "vindictively" amended the CBA "to specifically set aside the Arbitrator's Opinion and Award so that Plaintiff and her husband would not be able to take any vacations at the same time" (¶ 23(B)).

b. Alteration of Work Hours

Plaintiff alleges that in September 2001, defendant Farber altered Zvi Boyum's work schedule in order to cause an adverse impact on plaintiff and Zvi's family life. Specifically, this alteration caused plaintiff and Zvi to work opposite shifts (¶ 23(C)). Defendants also stopped their practice of permitting plaintiff's husband to take Fridays off despite knowledge that the extended Boyum family regularly gathered on Fridays (Id.).

c. Creation of a Hostile Work Environment

Plaintiff alleges that defendants created a hostile work environment by pressuring other employees not to associate with her. Plaintiff further alleges that this made her uncomfortable and frustrated her ability to perform her work duties (¶ 23(D)).

d. Disparate Treatment

Plaintiff alleges that defendants treated her differently from the other Horizon employees. The sole example plaintiff cites, however, is that defendant Farber permitted another co-worker to "chronically violate his lunch period" while giving plaintiff a "severe tongue lashing" ...

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