2018 NY Slip Op 51958

Citation: 2018 NY Slip Op 51958
Jurisdiction: New York (state)
Source verification: cross_accepted_sealed
Original Source: https://www.nycourts.gov/reporter/3dseries/2018/2018_51958.htm ↗

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plaintiffs' complaint is devoid of any allegations as to what, if any, renovations each Board
member, as an individual proprietary lessee, performed, "upon information and belief," in their
units. Also, the proprietary lease's description of each of the building's units reveals that none of
the Board members has any exterior residential structure outside the confines of his or her unit's
four walls within the building's interior. Nor does any Board member have a swimming pool. At
most, there were [*19]Board members when this action was
commenced who only had a terrace and/or garden outside their units. Furthermore, Dogwood
LLC and Blumenfeld, in voluntarily signing the Holdover Case Agreement, agreed to pay fees
Stable's legal, architectural, and engineering fees, and to negotiate an alteration agreement.

In opposing defendants' motion to dismiss plaintiffs' direct breach of fiduciary duty cause of
action, plaintiffs' counsel raises the new claim that the Board engaged in disparate treatment by
repairing structural defects (cf. Multiple Dwelling Law §§ 34 [2], 6 [c], [d]
(regarding water- and damp-proofing and/or drainage requirements for cellar rooms, exterior
walls, yards, and courts]) affecting the leaseholds of Board members but not those affecting
Dogwood LLC's leasehold. See Rosenberg affirmation in opposition to dismiss amended
2017 complaint, ¶¶ 10-15; id. exhibits A, C. Specifically, plaintiffs' counsel
attaches a January 2013 proposal, showing payments made in full by February 2013, for work
building a wall the length of the building to protect all three cellar units, which were subjected to
flooding and damage from storm water flowing through their gardens, down to their lower levels,