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Kingsview Homes, Inc v. Eddie U. Thomas and Doris M. Thomas

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


January 28, 2011

KINGSVIEW HOMES, INC.,
APPELLANT,
v.
EDDIE U. THOMAS AND DORIS M. THOMAS,
RESPONDENTS,
AND ARRI THOMAS ALSO KNOWN AS ORRIE THOMAS,
JUSTIN THOMAS AND ERIC THOMAS,
UNDERTENANTS.

Appeal from an order of the Civil Court of the City of New York, Kings County (Eleanora Ofshtein, J.), entered August 4, 2009.

Kingsview Homes, Inc. v Thomas

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 28, 2011

PRESENT: PESCE, P.J., WESTON and GOLIA, JJ

The order, insofar as appealed from, denied specified branches of landlord's motion, including the branch thereof seeking summary judgment.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In November 2008, landlord, a residential cooperative corporation, served tenants Eddie U. Thomas and Doris M. Thomas with notice that their proprietary lease for apartment 15B at 115 Ashland Place, Brooklyn, New York, had been terminated by a vote taken by the board of directors at a special meeting held on September 4, 2008. The notice alleged 22 incidents of objectionable conduct that had occurred from July 15, 1996 to July 30, 2008, involving tenants' family members. In response to the notice of petition and holdover petition that were subsequently served, tenants interposed an answer alleging, among other things, that landlord had violated the by-laws, proprietary lease and articles of incorporation.

Landlord moved for, among other things, summary judgment. In its supporting papers, landlord set forth tenants' violations based upon objectionable conduct involving the Thomases' children and the board's vote at the September 4, 2008 meeting. Since tenants had failed to agree to the conditions contained in an agreement prepared by the cooperative's attorney, landlord asserted, the tenancy had been terminated.

In opposition to the motion, tenants argued, among other things, that the terms of the agreement presented to them for approval contained a provision for the payment of attorney's fees, which was not a condition voted on by the board at the special meeting on September 4, 2008.

In reply affidavits, four members of the board of directors conceded that the condition requiring tenants to pay attorney's fees, included in the final agreement presented to tenants for their approval to forestall a termination of their proprietary lease, was not approved by the board of directors at the special meeting.

The Civil Court denied landlord's motion on the ground that tenants had raised issues of fact warranting a trial. This appeal by landlord ensued.

The proprietary lease provides that the lease may be terminated by a vote of at least two-thirds of the entire board of directors when the "[l]essee or other occupants or guests at the Apartment engage in conduct which is deemed to be objectionable." On September 4, 2008, a special meeting of the board of directors was held to terminate tenants' proprietary lease. The minutes of the meeting reflect that the board discussed the cooperative's long history with the Thomas family, an incident that occurred on July 30, 2008, and the credibility of the witnesses. The board found the past conduct of the Thomases' children and their friends objectionable. The board unanimously voted, in effect, to terminate the proprietary lease unless tenants agreed to, and complied with, the following conditions: "1.The Thomas family acknowledges the incidents attached to the notice of August 18, 2008;2.Arrie [sic] Thomas is permanently excluded from the grounds of Kingsview Cooperative, including without limitation, the apartments occupied by his mother, father and grandmother, and the common elements of any of the buildings in the Kingsview complex;3.The Thomas family is subject to a five year probationary period in which the following conditions must be strictly adhered to:a.Any further incidents or violation of the House Rules by any of the Thomas sons or their friends will result in termination of the Thomas family tenancies.b.Eric is not to loiter on the cooperative common elements.c.Eric's friends are not permitted on the cooperative's property, including without limitation, the apartments occupied by his mother, father and grandmother, and the common elements of any of the buildings in the Kingsview complex;4.Failure to strictly adhere to all of the conditions will result in termination of the tenancies." The cooperative's attorney was directed to draft "an appropriate agreement for Board review." Although the agreement is not part of the record on appeal, landlord concedes that the agreement presented to tenants included the conditions set forth in the special board meeting minutes as well as an added condition - - that they pay legal fees - - which had not been approved by the board of directors at the September 4, 2008 special meeting. Consequently, the cooperative failed to establish that tenants had not agreed to the conditions approved by the board of directors at the September 4, 2008 meeting and, thus, that the tenancy had been terminated in accordance with the proprietary lease. Accordingly, we affirm the Civil Court's order, insofar as appealed from, denying landlord's motion for, among other things, summary judgment.

In view of foregoing determination, we pass upon no other issue raised on appeal.

Pesce, P.J., Weston and Golia, JJ., concur.

Decision Date: January 28, 2011

20110128

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