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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and into their units. However, counsel's assertion overlooks the fact that, when the Board
approved and paid for that project, only one Board member, Youngberg, lived in a cellar unit.
El-Sawy did not become a Board member until 2016 (Amended 2017 complaint, ¶ 12), and
neither Matanic nor Frank lived in cellar units. Thus, the majority of the Board which authorized
that work was disinterested. That the wall was not built solely around Youngberg's unit, and was
built to resolve the flooding problems of two non-Board members, undercuts plaintiffs' counsel's
suggestion that the Board engaged in the disparate treatment of non-Board members in
performing repairs. Plaintiffs' counsel also submits a June 2017 bill for what is claimed to be
structural work, on the outside cellar unit 3G, Cavaleri's apartment (see Amended 2017
complaint, ¶ 13), causing water damage to his apartment's interior, which the Board
repaired. Contrary to plaintiffs' counsel's assertion (Rosenberg affirmation in opposition to
dismiss amended 2017 complaint, ¶ 11), Cavaleri was not then a Board member, and only
became one in 2018. In light of the foregoing, these alleged bases for the breach of fiduciary duty
cause of action, which were never set forth in the amended 2017 complaint, or, for that matter, in
connection with the proposed 2015 complaint, are unavailing. In an apparent attempt to
demonstrate disparate treatment, plaintiffs allege that a non-Board member unit owner's
alteration plans were "apparently approved almost immediately" (Peterson affidavit in
support of motion to dismiss amended 2017 complaint, exhibit 1, Amended 2017 complaint,
¶ 170, emphasis added). However, this allegation is speculative and fails to demonstrate the