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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DOB's inspector, is dismissed on the additional ground that it is devoid of any underlying factual
basis. The complaint alleges that these three proprietary lessees purposely refused entry to DOB's
inspectors to conceal their illegal units. However, as is further alleged in the amended 2017
complaint, in August 2017, DOB's inspector was granted access to each of the three cellar units
and issued a violation. See id., ¶¶ 117, 216. The amended 2017 complaint, in
an attempt to preserve this cause of action, which plaintiffs had initially asserted in their
proposed amended 2015 complaint, before DOB had been granted access, alleges, on
"information and belief," that in the future the cellar unit owners will not be cooperative in
permitting such inspections. Id.

This assertion is without merit since all three cellar unit occupants/proprietary lessees have
already granted access to their units. Moreover, plaintiffs' counsel, pointing to various April,
June, and September 2017 invoices and a consultation agreement, a number of which documents
predate the DOB violation, demonstrates that the Board at that time, which included two of the
cellar unit shareholders, Youngberg and El-Sawy, hired, through Matanic, consultants and
counsel to perform DOB research in an attempt to remove the DOB violation and to ascertain
whether the cellar units could be legalized, further demonstrating that the issue was not being
ignored, at least by two of the three cellar unit shareholders. See Rosenberg affirmation in
opp. to dismissal motion, ¶ 14; id., exhibit D. Neither does the complaint allege
what the unit owners would hope to gain by refusing entry to their units by a DOB inspector in
the future, here where DOB is already aware that the units fail to comply with the certificate of