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715 Ocean Parkway Owners Corp. v. Klagsbrun

Other Lower Courts

December 3, 2007

715 Ocean Parkway Owners Corporation, Plaintiff,
v.
Seymour Klagsbrun, Defendant.

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.

OPINION

Bruce M. Balter, J.

Background

In October, 2003, plaintiff 715 Ocean Parkway Owners Corporation, a cooperative corporation which owns a residential building located at 715 Ocean Parkway in Brooklyn, commenced this action against defendant Seymour Klagsbrun, a shareholder and resident of the building, alleging that defendant performed unauthorized renovations, alterations and/or modifications to his units in violation of the proprietary leases for the units. In its amended verified complaint, plaintiff sets forth six causes of action: a permanent injunction against any further unauthorized renovations; unpaid maintenance arrears of $29,609.01 plus interest; a judgment declaring that defendant owes plaintiff unpaid maintenance arrears; a monetary judgment for all unpaid maintenance; attorneys fees; and an order of ejectment in the event that defendant does not pay maintenance arrears within five days of service of the monetary judgment with notice of entry.

By order dated January 27, 2006 (Hon. Yvonne Lewis, J.), the pretrial court granted plaintiff's motion (brought via order to show cause dated September 29, 2005) for a preliminary injunction enjoining defendant, his employees, agents and/or contractors from performing any and all renovations, alterations and/or modifications to the units until such time that defendant complied with the requirements of his proprietary leases by providing true copies to plaintiff of the requisite insurance certificates from all contractors performing work in the units as well as all requisite permits issued by the New York City Department of Buildings, and for an order directing that defendant allow plaintiff's attorneys, superintendent, engineer and/or architect access to the units for the purpose of photographing and inspecting same. By order dated February 17, 2006, Judge Lewis directed that discovery be conducted and completed by certain dates and directed that plaintiff file a Note of Issue on or before May 19, 2006. By order dated May 12, 2006, Judge Lewis granted the motion of defendant's prior counsel to withdraw, and further ordered, inter alia, that all responses to any discovery demands be served by May 26, 2006, that defendant appear for a deposition on or before June 12, 2006 and that defendant grant access in accordance with the January 27, 2006 order on or before June 9, 2006. Plaintiff subsequently filed motions to strike defendant's answer and for an order of contempt based in part upon defendant's refusal to comply with the January 27, 2006 and May 12, 2006 orders. On October 18, 2006, Judge Lewis issued an order stating, in part:

". . .This Court is well aware of the many attempts to settle this matter, the conflicts that have arisen between Mr. Klagsbrun and his previous attorneys and legal advisor, and the undue delays that have been occasioned primarily by Mr. Klagsbrun's seemingly dilatory tactics herein. Nevertheless, this court, in an effort to adjudicate this matter on its merits, is going to afford Mr. Klagsbrun one final opportunity to comply with its prior directives. Accordingly, Mr. Klagsbrun, following notice of entry of this order, shall 1. pay plaintiff's attorneys ninety ($90.00) dollars in costs and two-thousand, five hundred ($2,500.00) dollars in attorneys' fees for his repeated failures; 2. on 48 hour written notice sent to his address of record in these proceedings by certified mail, permit plaintiff's attorneys, an engineer/architect of its choosing, and the superintendent access to units 3D and 2E (sic) at 715 Ocean Parkway; and, 3. will comply with all other outstanding discovery requests set forth in this court's orders of September 29, 2005, January 27, 2006, February 17, 2006, and May 12, 2006; i.e., production of documents and his EBT, within 45 days. In the event of non-compliance with any of the foregoing three items, Mr. Klagsbrun's verified answer shall be automatically stricken, and he shall be precluded from offering any evidence which was to have been furnished but for his omissions."

By order dated January 5, 2007, defendant's verified answer was stricken and defendant precluded from offering any evidence at trial which was to have been furnished during discovery. By order dated April 24, 2007, Judge Lewis denied defendant's motion to set aside the Note of Issue. This matter was thereafter set down for a trial, which was conducted before this court on September 20, 2007.

Findings of Fact

Plaintiff is the owner of a cooperative residential building located at 715 Ocean Parkway in Brooklyn. Defendant is a shareholder in the cooperative corporation and the proprietary lessee of units 3D and 3E in the building. Defendant's ownership of the subject units is governed by a single form of proprietary lease, which contains the following relevant provisions:

Alterations

21. (a) The Lessee shall not, without first obtaining the written consent of the Lessor, which consent shall not be unreasonably withheld or delayed, make in the apartment or building, or on any roof, penthouse, terrace or balcony appurtenant thereto, any alteration, enclosure or addition or any alteration of or addition to the water, gas, or steam risers or pipes, heating or air conditioning system or units, electrical conduits, wiring or outlets, plumbing fixtures, intercommunication or alarm system, or any other installation or facility in the apartment or building. The performance by Lessee of any work in the apartment shall be in accordance with any applicable rules and regulations of the Lessor and governmental agencies having jurisdiction thereof. The Lessee shall not in any case install any appliances which will overload the existing wires or equipment in the building. Anything herein or in subparagraph (b) below to the contrary notwithstanding, the consent of the Lessor shall not be required for any of the foregoing alterations, enclosures or additions made by, or the removal of any additions, improvements or fixtures from the apartment by, a holder of Unsold Shares.

Notwithstanding the foregoing, no additions, alterations or improvements shall be made by a holder of Unsold Shares in the public areas of the building or in any apartment not leased to such holder of Unsold Shares without first obtaining the consent of the Lessor (which consent shall not be unreasonably withheld or delayed) and (if applicable) the lessee of such other apartment.

Termination of Lease by Lessor

31. If upon, or at any time after, the happening of any events mentioned in subdivisions (a) to (j) inclusive of this Paragraph 31, the Lessor shall give to the Lessee a notice stating that the term hereof will expire on a date at least five days thereafter, the term of this lease shall expire on the date so fixed in such notice as fully and completely as if it were the date herein definitely fixed for the expiration of the term, and all right, title and interest of the Lessee hereunder shall thereupon wholly ceased and expire, and the Lessee shall there upon quit and surrender the apartment to the Lessor, it being the intention of the parties hereto to create hereby a conditional limitation and thereupon the Lessor shall have the right to re-enter the apartment and to remove all persons and personal property therefrom, either by summary dispossess proceedings, or by any suitable action or proceeding at law or in equity, or by force or otherwise, and ...


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