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Rich v. Board of Managers of 255 Cabrini Condominium

Supreme Court of New York, New York County

July 30, 2013

Karen RICH, individually, and derivatively, on behalf of the 255 Cabrini Condominium, Petitioner,
v.
BOARD OF MANAGERS OF THE 255 CABRINI CONDOMINIUM, Nancy Ancowitz, Richard Ancowitz, Michael Augenblick, Eileen Bernstein, William Cameron, Eva Halfon, Ed Jurewicz, Mike Jurewicz, Ken Weissman, 123 Lowtide Associates, Arthur Ancowitz, as Trustee for the Arthur Ancowitz Revocable Trust, Marijane Ancowitz Kanner, Lynne R. Barasch, Ges Group LLC, and Richard Ancowitz, as Trustee for the Spencer Cameron Trust, Respondents. No. 152547/13.

Editorial Note:

This decision has been referenced in a table in the New York Supplement.

Gallet Dreyer & Berkey, LLP, by David L. Berkey, Esq., Joseph V. Aulicino, Esq., New York, for respondents 123 Lowtide Associates, Arthur Ancowitz, as Trustee for the Arthur Ancowitz Revocable Trust, Marijane Ancowitz Kanner, Lynne R. Barasch, GES Group LLC, and Richard Ancowitz, as Trustee for the Spencer Cameron Trust (the Sponsor Respondents).

Cantor, Epstein & Mazzola, LLP By Gray Ehrlich, Esq. New York, for respondents Board of Managers of the 255 Cabrini Condominium, Nancy Ancowitz, Richard Ancowitz, Michael Augenblick, Eileen Bernstein, William Cameron, Eva Halfon, Ed Jurewicz, Mike Jurewicz, Ken Weissman.

MICHAEL D. STALLMAN, J.

Upon the foregoing papers, it is ORDERED that petitioner's motion for an extension of time to serve the pleadings is granted; and it is further

ORDERED that the time for petitioner to personally serve the pleadings upon respondents 123 Lowtide Associates, Arthur Ancowitz, as Trustee for the Arthur Ancowitz Revocable Trust, Marijane Ancowitz Kanner, Lynne R. Barasch, GES Group LLC, and Richard Ancowitz, as Trustee for the Spencer Cameron Trust is hereby extended to August 29, 2013.

In this special proceeding, petitioner seeks to set aside and annul an election of the board of managers that was held on October 25, 2012. The proceeding was e-filed on March 20, 2013, more than four months after the election was held. Petitioner asserts that, in an agreement between the Board of Managers of the 255 Cabrini Condominium and a group of residential condominium unit owners, known as the " 255 Cabrini Concerned Owners Group", the Board purportedly agreed to toll the statute of limitations pertaining to the commencement of any action or special proceeding challenging the election. The purported agreement was signed by petitioner, Karen Rich, on behalf of 255 Cabrini Concerned Owners Group, and by Michael Augenblick, as President of the Board of Managers of the 255 Cabrini Condominium.

Previously, petitioner sought, by order to show cause, a preliminary injunction against the current board of managers (Motion Seq. No. 001). In a stipulation dated March 28, 2013, between Braverman Greenspun P.C. and Rosen Livingston & Cholst LLP, the attorneys agreed

" that the law firm of Rosen Livingston & Cholst LLP hereby appears in this proceeding on behalf of the respondents, the Board of Managers of the 255 Cabrini Condominium ... 123 Lowtide Associates, Arthur Ancowitz as Trustee for the Arthur Ancowitz Revocable Trust, Marijane Ancowitz Kanner, Lynne R. Barasch, GES Group LLC, and Richard Ancowitz as Trustee for the Spencer Cameron Trust (collectively, the Respondents')....
that Rosen Livingston & Cholst LLP has agreed to accept service on behalf of the Respondents of the order to show cause (OTSC') issued in the within proceeding and the papers upon which it is based— including the Petition."

(Peterson Aff., Ex C.) The petition was apparently served upon Rosen Livingston & Cholst LLP on March 28, 2013. ( See Peterson Aff., Ex D.)

Respondents 123 Lowtide Associates, Arthur Ancowitz, as Trustee for the Arthur Ancowitz Revocable Trust, Marijane Ancowitz Kanner, Lynne R. Barasch, GES Group LLC, and Richard Ancowitz, as Trustee for the Spencer Cameron Trust (collectively, the Sponsor Respondents) assert that Rosen Livingston & Cholst LLP did not represent them, and therefore was not authorized to accept service on behalf of the Sponsor Respondents. The Sponsor Respondents have cross-moved to dismiss the proceeding as against them for lack of personal jurisdiction (Motion Seq. No. 001). By an interim decision and order dated May 31, 2013, this Court directed a hearing, inter alia, as to whether personal service upon the Sponsor Respondents was properly made upon Rosen Livingston & Cholst LLP. The hearing before a Special Referee has been scheduled for September 3, 2013.

Pursuant to CPLR 306-b, petitioner now seeks leave for an extension of time to serve the Sponsor Respondents. The Sponsor Respondents oppose the motion.

" CPLR 306— b authorizes an extension of time for service in two discrete situations: upon good cause shown' or in the interest of justice' ( Leader v. Maroney, Ponzini & Spencer,97 N.Y.2d 95, 104-106, 736 N.Y.S.2d 291, 761 N.E.2d 1018 [2001] ).... A good cause' extension requires a showing of reasonable diligence in attempting to effect service upon a defendant. At least one Appellate Division decision has suggested that good cause is likely to be found where the plaintiff's failure to timely serve process is a result of circumstances beyond [its] control' ( Bumpus v. New York City Tr. Auth., 66 A.D.3d 26, ...

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