July 23, 2013
18 WARREN STREET CONDOMINIUM LTD. BOARD OF MANAGERS OF 18 WARREN STREET CONDOMINIUM LTD., FRANZ FREIDRICH, STEVEN SALZMAN, SANFORD WURMFELD, Plaintiff,
RICHARD HU, LI-HUEI HUANG, AND THE WALL STREET HUMIDOR CORP., Defendants Docket No. 651116/2012
Hon. EILEEN A. RAKOWER Justice
Plaintiffs bring this motion for summary judgment against Richard Hu, Li-Huei Huang, and The Wall Street Humidor Corp. ("defendants") seeking (1) on plaintiffs' first cause of action and second causes of action, common charges and assessments amounting to $38, 310.00 as of April 1, 2012 and any additional common charges accruing subsequent to April 1, 2012, along with interest thereon, pursuant to the Condominium By-Laws at 16% per annum, from the date each payment was due, and attorney's fees in an amount to be determined by the Court; (2) on plaintiffs' third cause of action, a permanent injunction restraining and enjoining defendants from operating a cigar store at 18 Warren Street, New York, NY; (3) on plaintiffs' fourth cause of action, Richard Hu's and Li-Huei Huang's liability for damages to residential tenants in an amount to be determined at inquest; (4) on plaintiffs' fifth cause of action, that the cigar store's lease and occupancy of the commercial space at 18 Warren Street, NY, NY is in violation of the Condominium's By-Laws; and (5) on their sixth cause of action, to permanently enjoin Richard Hu and Li-Huei Huang from padlocking cellar doors. Defendants do not oppose this motion.
Plaintiffs are residential unit owners in the Condominium located at 18 Warren Street, New York, New York ("the Condo") and claim to be officers of the Condo corporation. The Condominium consists of one commercial unit owned by Richard Hu and Li Huei Huang (the "Hu Defendants") and occupied by The Wall Street Humidor Corp. as well as four residential units. Plaintiff Board of Managers of 18 Warren Street Condominium, Ltd., (the "Board") holds itself out as the duly appointed and/or elected agents of the condominium homeowners with the power to manage the condominium business and property. Plaintiffs Sanford Wurmfeld, the President of the Condo, Franz Friedrich the Secretary of the Condo and, Steven Salzman the Treasurer of the Condo are individual owners of units in the condominium, and reside at the Premises.
The Hu Defendants own Unit 1, a commercial space on the ground floor of the Condo. The Hu Defendants are the owners and principals of The Wall Street Humidor Corporation ("the Cigar Store"), which operates a cigar store at the premises.
Plaintiffs served the summons and complaint on April 5, 2011. The Hu Defendants answered, pro se, on behalf of all Defendants, including the Wall Street Humidor Corp on May 29, 2011. Pursuant to CPLR §321(a), a corporation must be represented by counsel. As The Wall Street Humidor Corporation is not represented by counsel, they have never properly answered the complaint. Plaintiffs have never moved for a default.
Plaintiffs allege that the Hu Defendants are in arrears in the payment of common charges and/or assessments in the amount of $38, 310.00. Plaintiffs also assert that defendants' Cigar Store creates second hand smoke which is a nuisance "injurious to the health and well being of other residents of the Condominium as well as the members of their families and guests in their residences." Additionally, Plaintiffs urge that padlocks on the cellar doors must be removed because in the event of an emergency, at a time when the elevator is inoperable, "workmen or others in the cellar or sub-cellar would have no means of egress."
The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law. That party must produce sufficient evidence in admissible form to eliminate any material issue of fact from the case. Where the proponent makes such a showing, the burden shifts to the party opposing the motion to demonstrate by admissible evidence that a factual issue remains requiring the trier of fact to determine the issue. The affirmation of counsel alone is not sufficient to satisfy this requirement. (Zuckerman v. City of New York, 49 N.Y.2d 557 ). In addition, bald, conclusory allegations, even if believable, are not enough. (Ehrlich v. American Moninger Greenhouse Mfg. Corp., 26 N.Y.2d 255 , Edison Stone Corp. v. 42nd Street Development Corp., 145 A.D.2d 249, 251-252 [1st Dept. 1989]).
According to Defendant's Answer,
the plaintiffs, Board of Managers and 18 Wasrren [sic] Street Condominium Ltd, were not properly constituted, installed, elected, appointed or otherwise and as such, said board of Managers did not and does not have proper authority, permission or empowerment to bring this instant lawsuit or perform the acts or actions they took or are taking as are alleged in the Complaint or that resulted in this instant lawsuit. As such, said plaintiffs acted and took actions, including but not limited to bringing this instant lawsuit, making any improper or unauthorized assessments or special assessments or otherwise, in an ultra vires, illegal and improper manner and their actions are null and void as against the defendants and each of them.
The 18 Warren Street Condominium By-Laws annexed to Plaintiffs motion are missing pages 8 and 9, which refer to: Section 2.5 Certain Limitations on the Powers of the Condominium Board; Section 2.6 Exercise and Delegation of Powers and Duties; Section 2.7 Number, Election and Qualification of Members; and Section 2.8 Term of Office of Members. As such, the By-Laws are not a complete document and not submitted as proof in admissible form. Plaintiff has not made a prima facie showing that the 18 Warren Street Condominium Board has been properly constituted according to the By-Laws. Accordingly, Plaintiffs motion for summary judgment is denied.
Wherefore, it is hereby,
ORDERED that Plaintiffs motion for summary judgment is denied. This constitutes the decision and order of the court. All other relief requested is denied.