Professional Documents
Culture Documents
COUNTY OF QUEENS
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COMPLAINT
JERRY IANNECE & LYNN IANNECE,
Plaintiff(s)
Index No.:
respectfully allege, upon information and belief, that at all times hereinafter mentioned
1. That the plaintiffs; JERRY IANNECE and LYNN IANNECE were and still
2. That at all times hereinafter mentioned and prior and after thereto, plaintiffs
were and are the owners, in Fee Simple, of Units 1D (purchased in 2008) and 4B
Place, Sunnyside, County of Queens, State of New York. That plaintiffs purchased both
units for investment purposes with the intent to rent said units to prospective tenants.
3. That 47-55 39th Place, Sunnyside. New York, is a six-story prewar non-
fireproof building with approximately 50 apartments located at: Section 2, Block: 99,
Lot 5 on the Tax Map of the Borough of Queens, that was converted to residential
condominiums, pursuant to Article 9-B of the Real Property Law of the State of New
York (Condo Act) and pursuant to a Declaration of Condominium and By-Laws, dated
April 24, 1985 and filed in City Registers Office, County of Queens on July 29, 1985,
under Reel Number 01892, Pages 0775-20774, having its principal office at the
condominium building at 47-55 39th Place, Sunnyside, New York, in the County of
4. That at all times hereinafter mentioned, the aforesaid Declaration and By-
Laws, with any amendments thereto, along with the Condo Act are the governing and
controlling documents of said condominium, and set forth the conditions and limitations
and procedures concerning the conduct of the affairs of the condominium, the
been passed and/or filed, and the governing binding documents are the Declaration, By-
6. That at all times hereinafter mentioned, the aforesaid Declaration and By-Laws
called for the creation of a Condominium Board that would be the agent of ALL Unit
Owners and would be governed by the terms, conditions and limitations of said
Declaration and By-Laws, and set forth the rules and procedures concerning the conduct
7. That the purpose of the Condominium Board was/is to act as a managing body
for the preservation, maintenance, architectural control and improvement of the condo
building and common areas therein, located at 47-55 39th Place, Sunnyside, New York
11104, and to act/manage in the best interest of ALL condo unit owners.
8. That implicit in said Declaration, By-Laws and the NYS Condom Act, the
Condominium Board had a fiduciary duty to adhere to said governing documents, act
reasonably and prudently as fiduciaries, and was to not act arbitrarily, capriciously, and/or
in bad faith.
and Regulations which provided for the basic rules of conduct which governed the
administrative and day to day living habits of the unit owners. Said rules and regulations
could be amended and modified by the condominium board from time to time, provided
that said amendment/modification did/does not conflict, alter and/or amend the terms
10. That said Rules and Regulations could not financially and/or materially alter
a unit owners obligations, nor change the terms of the Declaration and/or By-Laws. The
Rules and Regulations are separate and apart from the Declaration and By-Laws and
were never meant to address condo unit owners financial contractual obligations.
11. That at all times hereinafter mentioned, the Rules and Regulations are now
condominium board cannot amend, alter and/or change the Declaration or By-Laws. The
Declaration and By-Laws specifically provide for the manner and requirements to change
Board was established and existed when plaintiffs purchased Unit 1D in 2008.
14. Upon information and belief, said Condominium Board employed the
maintain the common areas and to manage the day to day operation of said building,
15. That at all times hereinafter mentioned, in 2008 when plaintiffs purchased
Unit 1D, pursuant to the Declaration, By-Laws and the Condo Act, as in all
condominium, the unit owners of 47-55 39th Place, had fee simple ownership of their
respective units and, other than the limited condo right of first refusal, like all fee simple
ownerships, the unit owners had virtual unrestricted use to occupy, rent and/or use their
units.
16. Upon information and belief, when plaintiffs purchased Unit 1D in 2008,
there were no transfer fees, flip taxes, rental or sublet fees, processing fees, and/or
17. Upon information and belief, on or about 2011, a group of disgruntled unit
owners organized and seized control of the Condominium Board, elected a new board of
managers, fired the independent managing agent and began to self-manage the building.
18. Upon information and belief, that at all times hereinafter mentioned,
The 47-55 39th Place Condominium is this new Condominium Board managing and
running the day-to-day operation of said building since 2011 and is one of the named
19. Upon information and belief, that at all times hereinafter mentioned, the
defendants: Raymond Chan, Haresh Kumar Joshi, Neal Milano and Samir Joshi were
and are the elected members/officers of the Condominium Board, manage the day-to-day
operation of the building and control the Condo (hereafter Managers) and were in this
20. At all times hereinafter mentioned, plaintiffs have always paid all common
charges, assessments and/or fees on a timely basis and have continuously rented both
21. Plaintiffs repeat, reiterate and re-allege each and every allegation contained in
paragraph(s) 1 through 21 inclusive, with the same force and effect as though more
22. That on or about November 11, 2012, the Condo Board and Managers
allegedly held a Special Board Meeting and passed a House Rule Amendment requiring
that all new tenants would be required to pay a $750 non-refundable, mandatory
23. That said fee was not specifically authorized by the Declaration and/or
By-Laws, could not be imposed by a House Rule change and hence was not permitted to
24. That said fee was more than double the ordinary and customary amount
normally charged by the industry standards and practices by other condo and/or co-op
25. That said monetary House Rules amendment was a disguised attempt to
amend the Declaration and By-Laws without meeting the amendment requirements
prescribed in the Declaration and By-Laws.
26. That the Condo Board and Managers are not authorized and/or permitted to
amend the Declaration and/or By-Laws, unilaterally on their own, without seeking unit
owner approval and meeting the requirements as set forth in the governing documents.
28. That said fee places unreasonably conditions on the rights of the unit owners
to freely transfer and/or rent their condo real property, it infringed upon their property
29. That the action taken by the Condo Board and Managers was unreasonable in
that their was no justifiable and/or lawful reason to impose said fee. The application
and/or interview (many times there were no interviews at all) did not cost the Condo
Board anything.
30. That the action was unreasonable for the further reason that it caused a
substantial reduction in the fair market rental value of the plaintiffs units and dissuaded
additional fee in addition to all the other costs and expenses of renting and moving into a
new apartment.
31. That in early 2014, the plaintiffs put Unit 1D on the market for rental. That
due to the unreasonable and unjustified $750 interview/application fee, plaintiffs had
enticement, plaintiffs were forced to agree to pay said $750 fee on behalf of any
prospective tenant.
32. In April 2014, the plaintiffs found renters, signed a lease with said tenants
and paid the $750 fee to the Condo Board.
33. Plaintiffs expressed their disapproval of said fee with the defendants, to no
avail.
WHEREFORE, the defendants demand the return of the $750 fee paid.
34. Plaintiffs repeat, reiterate and re-allege each and every allegation contained in
paragraph(s) 1 through 34 inclusive, with the same force and effect as though more
35. On April 25, 2014, plaintiffs closed on the purchase of Unit 4B and spent the
next several weeks upgrading and renovating the unit to make it ready for rental.
36. In June 2014, plaintiffs received notification from defendants that the
$1500 per application, and if said fee was not paid, the unit owner would be fined $5000,
commenced.
37. Plaintiffs immediately voiced their objection thereto and again claimed that
the defendants did not have the authority to impose said fee and further claimed that said
100 % increase was a direct result and/or retaliation motivated by personal animosity
against the plaintiffs by defendants for their respective protest to the original $750 fee
unlawfully imposed and paid on Unit 1D and/or for other unspecified and unjustified
reasons.
38. That said $1500 fee was instituted in bad faith, outside the scope of their
unilateral House Rule amendment and was imposed in direct contradiction, conflict and
40. That said $1500 fee financially and materially altered the Declaration and By-
Laws, which are binding contracts between the Condo Board and all unit owners.
plaintiffs had even more difficulty renting Unit 4B and were forced to agree to absorb
42. In September 2014, the plaintiffs rented Unit 4B and paid the $1500 fee
Under Protest to the Condo Board, demanding that the defendants provide proof that
they had the authority to impose said fee. In response thereto, the defendants provided a
clause that permitted the Condo Board to amend the House Rules, but provided nothing
to demonstrate that the Condo Board and Managers could unilaterally amend the
Declaration and/or By-Laws and Unreasonably Restrain Alienation without getting the
43. That said fee places unreasonably conditions on the rights of the unit owners
to freely transfer and/or rent their condo real property and is an unlawful and
44. That the action taken by the defendants was unreasonable in that their was no
justifiable and/or lawful reason to impose said fee. The application and/or interview did
not cost the Condo Board anything, and in many cases, as was in the rental of 1D, there
45. That the action was unreasonable for the further reason that it caused a
substantial reduction in the fair market rental value of the plaintiffs units and dissuaded
additional fee in addition to all the other costs and expenses of renting and moving into a
new apartment.
WHEREFORE, the defendants demand the return of the $1500 fee paid.
46. Plaintiffs repeat, reiterate and re-allege each and every allegation contained in
paragraph(s) 1 through 46 inclusive, with the same force and effect as though more
allegedly met and voted to pass another House Rule Amendment to again increase the
48. Said third substantial monetary increase in less than 3 years has materially
altered the contract between the plaintiffs and defendants and has substantially reduced
the fair market sale/rental value of plaintiffs units. That said fee, if permitted under the
governing documents, was approximately 10 times the amount of the industry standards
49. The defendants did not have the unilateral authority to impose said fees, have
violated the Declaration and By-Laws and have unreasonably alienated and/or restricted
50. For all the reasons stated above in the previous causes of action, the plaintiffs
51. Plaintiffs desire a judicial determination of their rights and duties, and a
declaration as to the validity of the actions of the defendants..
52. A judicial declaration is necessary and appropriate at this time under the
circumstances in order that plaintiffs may ascertain their rights as alleged. Plaintiffs will
continue to suffer the above-described harm unless and until such declaration is made.
fees cannot be imposed by defendants and/or are excessive, further demanding judgment
return all monies collected thereon and enjoining the defendants from attempting to
53. Plaintiffs repeat, reiterate and re-allege each and every allegation contained in
paragraph(s) 1 through 53 inclusive, with the same force and effect as though more
54. Upon information and belief, when the plaintiffs purchased Unit 1D, there
55. Sometime prior to plaintiffs purchase of Unit 4B, the defendants allegedly
met and passed a House Rule Amendment, requiring that all sales/purchases would be
56. That said fees are no specifically authorized in the Declaration and By-Laws,
and were not passed pursuant to the requisite unit owners amendment requirements
therein, substantially impair the Fair Market Value of the property and are hence a
violation thereon.
57. On April 25, 2014, the plaintiffs closed on Unit 4B and were forced to pay
said unlawful and unauthorized fees, otherwise the defendants would not have waived the
58. Said fees were unauthorized, unlawful and an unreasonable restrictions and
WHEREFORE, the defendants demand the return of the $1500 Management Fee
59. Plaintiffs repeat, reiterate and re-allege each and every allegation contained in
paragraph(s) 1 through 59 inclusive, with the same force and effect as though more
60. Upon information and belief, in late 2015, the defendants met and passed
transfer fees. Under said new provision, sellers were required to pay a processing/service
fee in the amount of $5000 and purchasers were required to pay a $1500 application fee
61. Said fees are not specifically authorized in the Declaration and By-Laws, and
were not passed pursuant to the requisite unit owners amendment requirements therein,
substantially impair the Fair Market Value of the property and are hence a violation
thereon.
62. Said fees were not justified in that there were/are no costs and/or expenses to
amounting to a Flip Tax. They are further an unreasonable condition placed upon the
fee simple rights of the unit owners and a restraint on the alienation of free transfer and
63. There is no justifiable basis for said fees and there is no authority in the
64. Said fees are unauthorized, illegal and unenforceable and materially alter the
contract between the plaintiffs and defendants and has substantially reduced the fair
65. The defendants did not have the unilateral authority to impose said fees, have
violated the Declaration and By-Laws and have unreasonably alienated and/or restricted
66. For all the reasons stated above, the plaintiffs have sustained irreparable
monetary harm.
67. Plaintiffs desire a judicial determination of their rights and duties, and a
68. A judicial declaration is necessary and appropriate at this time under the
circumstances in order that plaintiffs may ascertain their rights as alleged. Plaintiffs will
continue to suffer the above-described harm unless and until such declaration is made.
processing fees and/or flip taxes cannot be imposed by defendants and/or are excessive,
fees and/or flip taxes, demanding that defendants return all monies collected thereon and
enjoining the defendants from attempting to collect these fees and/or similar types of fees
again.
AS AND FOR A SIXTH CAUSE OF ACTION
69. Plaintiffs repeat, reiterate and re-allege each and every allegation contained in
paragraph(s) 1 through 69 inclusive, with the same force and effect as though more
70. On or about this same time frame, the plaintiffs were approached by several
other unit owners who were not happy with the defendants and their management of the
building. They felt that the defendants were mismanaging the building, self-dealing,
harassing and bullying the inhabitants of the building, passing burdensome and
unreasonable house rules and policies, and were basically out of control.
71. Pursuant to the request of these other unit owners, in an effort to try to bring
some reasonableness to the situation, the plaintiffs applied to be members of the board of
managers and submitted their names for consideration and election in accordance with all
applicable rules.
72. In the weeks prior to the election, numerous unit owners were coerced and
intimidated by one or more of the defendants to support the defendants and not support
the plaintiffs. Numerous derogatory and false statement/information about the plaintiffs
was circulated by the defendants to the unit owners to discourage support and/or
participation.
73. At the election, which was run and controlled by the defendants, although
both plaintiffs names were originally properly duly submitted for consideration, the
defendants only submitted one name, and via undemocratic practices, were able to retain
changing the qualifications for prospective board members, requiring that any
prospective board member MUST live in the condominium building for a minimum of
one (1) year or longer prior to the election to be considered as a new member for the
board of managers.
75. Said change is in direct violation of the qualifications for board members as
76. At no time was any attempt made by the defendants to lawfully and properly
amend the Declaration and/or By-Laws to change the qualification of a board member as
specified.
77. At all times hereinafter mentioned, the defendants knew that the plaintiffs
were not owner occupiers and that they rented out their two (2) units for investment
purposes and would not be able to meet this new residency requirement.
78. That this illegal, unauthorized and contrary to the Declaration and By-Laws
prevent and/or block the plaintiffs, and/or any other investment owner who was not living
in the building, from ever serving on the board and questioning and challenging the out of
relationship to the welfare of the condominium, deliberately singled out plaintiffs and
investor owners for harmful treatment, was taken without notice or consideration of
relevant facts, is clearly beyond the scope of the boards authority, and was perpetrated in
bad faith.
80. That said action have materially altered the contract between the plaintiffs
and defendants and has substantially reduced the fair market value of plaintiffs units.
81. That for all the reasons stated above, the plaintiffs have sustained irreparable
monetary harm.
82. Plaintiffs desire a judicial determination of their rights and duties, and a
83. A judicial declaration is necessary and appropriate at this time under the
circumstances in order that plaintiffs may ascertain their rights as alleged. Plaintiffs will
continue to suffer the above-described harm unless and until such declaration is made.
declared null and void, and that the defendants be enjoined from trying to institute this
84. Plaintiffs repeat, reiterate and re-allege each and every allegation contained in
paragraph(s) 1 through 84 inclusive, with the same force and effect as though more
85. The aforesaid building is a condominium and the owners have fee simple
86. That the Right of First Refusal gives a condo board the first right to purchase
and/or rent a unit under the same term and conditions as is being offered by the unit
owner/seller.
87. That the right to request personal and/or financial information from a
prospective buyer/renter prior to triggering the right of first refusal must be specifically
spelled out and permitted in the condo Declaration and/or By-Laws. Regardless, even if
the condo governing documents provide for this vetting information process, it must be
89. That the defendants, since taking control of the board, have systematically
and continuously changed the House Rules annually, making them stricter and more
Rules specify, in addition to the large imposed fees for sales, purchases and/or rentals,
Cards, State Drivers License or ID Cards, Social Security Cards, Criminal Background
Check, Credit Report, three (3) years of Tax Returns, along with very detailed and
90. That the authority to request this information from a prospective buyer/renter
does not exist within the condominium Declaration and/or By-Laws and is therefore
of the US Constitution and is therefore not only contrary to the condominiums governing
documents but against federal and state law and public policy.
relationship to the welfare of the condominium, deliberately singled out investor owners
for harmful treatment, was taken without notice or consideration of relevant facts, is
clearly beyond the scope of the boards authority, and was perpetrated in bad faith.
94. Said requirements have materially altered the contract between the plaintiffs
and defendants, has dissuaded would-be renters and/or buyers and has substantially
95. For all the reasons stated above, the plaintiffs have sustained irreparable
monetary harm.
96. Plaintiffs desire a judicial determination of their rights and duties, and a
97. A judicial declaration is necessary and appropriate at this time under the
circumstances in order that plaintiffs may ascertain their rights as alleged. Plaintiffs will
continue to suffer the above-described harm unless and until such declaration is made.
restriction be stricken and/or declared null and void and that the defendants be enjoined
98. Plaintiffs repeat, reiterate and re-allege each and every allegation contained in
paragraph(s) 1 through 98 inclusive, with the same force and effect as though more
99. Plaintiffs purchased both units with the specific intent to rent them out to
third parties for investment purposes. The defendants at all time knew this and were
aware of it.
100. Upon information and belief, when the plaintiff purchased Unit 1D there
101. Upon information and belief, sometime after the defendants took control,
they unilaterally changed the House Rules and instituted other burdensome requirements,
fees and policies in regards to use of the units, their potential rental and any future
renovations therein, that altered the Declaration and By-Laws, materially impacted and
infringed upon the free ownership rights of the units, and substantially denied the unit
b. All renewal leases were again subject to the right of first refusal,
102. Unless the governing documents specifically permit the condominium board
to do this, the defendants are prohibited from imposing these restrictions, polices/ and/or
fees.
103. The defendants cannot change the House Rules in the guise of amending the
governing documents without following the prescribed amendment procedures within the
relationship to the welfare of the condominium, deliberately singled out plaintiffs and
investor owners for harmful treatment, was taken without notice or consideration of
relevant facts, is clearly beyond the scope of the boards authority, and was perpetrated in
bad faith.
105. Said action have materially altered the contract between the plaintiffs and
defendants and has substantially reduced the fair market value of plaintiffs units.
106. For all the reasons stated above, the plaintiffs have sustained irreparable
monetary harm.
107. Plaintiffs desire a judicial determination of their rights and duties, and a
108. A judicial declaration is necessary and appropriate at this time under the
circumstances in order that plaintiffs may ascertain their rights as alleged. Plaintiffs will
continue to suffer the above-described harm unless and until such declaration is made.
imposed restrictions/fees are null and void and must be stricken and/or substantially
curtailed and amended, and that the defendants be enjoined from this conduct again.
109. Plaintiffs repeat, reiterate and re-allege each and every allegation contained
in paragraph(s) 1 through 109 inclusive, with the same force and effect as though
110. While plaintiffs recognize that the condominium and the defendants have the
limited use of the Right of First Refusal in purchases/sales and/or initial rentals, the
defendants are misapplying it, abusing it and are not acting in good faith in its
application.
111. Upon information and belief, the defendants have and are continuing to try
to use the Right of First Refusal as an impediment to block, prohibit and/or make it
difficult for purchases and/or rentals; analogous to rights and practices of a cooperative
board.
112. The defendants have repeatedly demanded copies of any and/or all renewal
leases, even when no lease was required, and have clearly indicated that the renewal
lease(s) were subject to the Right of First Refusal. In furtherance of this policy, the
defendants have repeatedly directly approached plaintiffs tenants and have harassed
113. Once the Right of First Refusal is waived in relation to a specific tenant, the
condominium board no longer has any Right of First Refusal rights in relation to that
particular tenant for that particular apartment in relation to any lease renewals.
the welfare of the condominium, deliberately singled out plaintiffs and investor owners
for harmful treatment, was taken without notice or consideration of relevant facts, is
clearly beyond the scope of the boards authority, and was perpetrated in bad faith.
115. Said action have materially altered the contract between the plaintiffs and
defendants and has substantially reduced the fair market value of plaintiffs units.
116. For all the reasons stated above, the plaintiffs have sustained irreparable
monetary harm.
117. Plaintiffs desire a judicial determination of their rights and duties, and a
118. A judicial declaration is necessary and appropriate at this time under the
circumstances in order that plaintiffs may ascertain their rights as alleged. Plaintiffs will
continue to suffer the above-described harm unless and until such declaration is made.
from this activity, properly employ the right of first refusal in these situations, and that
the defendants be enjoined from violating the parameters and purpose of it in all future
situations.
119. Plaintiffs repeat, reiterate and re-allege each and every allegation contained
in paragraph(s) 1 through 119 inclusive, with the same force and effect as though
120. In February 2017, the plaintiffs received notification from defendants that
the defendants had met and voted on January 19, 2017, to impose a $200 per month
rental surcharge for each unit rented; to go into effect on January 1, 2018, and if said fee
was not paid, the unit owner would be fined $5000, a lien imposed on their respective
121. Plaintiffs immediately voiced their objection thereto and again claimed that
the defendants did not have the authority to impose said fee and further claimed that said
surcharge was targeted towards rental units, was discriminatory, was unauthorized
122. That absent specific authority in the Declaration and/or By-Laws, the
defendants have no authority to impose this sub-let fee/surcharge, nor impose any
123. That said $200 surcharge/sublet fee was instituted in bad faith, outside the
scope of their authority, and for no legitimate purpose by the defendants.
124. That said surcharge/sublet fee, was imposed by the defendants via a
unilateral House Rule amendment and was imposed in direct contradiction and conflict to
125. That said surcharge/sublet fee financially and materially altered the
Declaration and By-Laws, which are binding contracts between the Condo Board and all
unit owners.
126. That said fee places unreasonably conditions on the rights of the unit owners
to freely transfer and/or rent their fee simple condo real property and is an unlawful and
that their was no justifiable and/or lawful reason to impose said fee, and was imposed to
reduce plaintiffs profit and was part of a systematic conscious and intentional effort by
128. That the defendants action was unreasonable for the further reason that it
caused a substantial reduction in the fair market value of the plaintiffs units and a
129. That these actions are arbitrary, capricious, served no legitimate relationship
to the welfare of the condominium, deliberately singled out plaintiffs and investor owners
for harmful treatment, was taken without notice or consideration of relevant facts, is
clearly beyond the scope of the boards authority, and was perpetrated in bad faith.
130. That said action have materially altered the contract between the plaintiffs
and defendants and has substantially reduced the fair market value of plaintiffs units.
131. For all the reasons stated above, the plaintiffs have sustained irreparable
monetary harm.
132. Plaintiffs desire a judicial determination of their rights and duties, and a
133. A judicial declaration is necessary and appropriate at this time under the
circumstances in order that plaintiffs may ascertain their rights as alleged. Plaintiffs will
continue to suffer the above-described harm unless and until such declaration is made.
imposed rental sublet/surcharge fee must be stricken and declared null and void and that
the defendants be enjoined from attempting to impose this type of fee again.
134. Plaintiffs repeat, reiterate and re-allege each and every allegation contained
in paragraph(s) 1 through 134 inclusive, with the same force and effect as though
135. At all times hereinafter mentioned, the defendants were in control of the
condominium building.
136. Without consulting with anyone and/or soliciting unit owner approval and/or
input, the defendants caused the entranceway lobby walls to be painted and/or covered
with right wing political propaganda, murals, pictures, and other offensive materials,
137. That the plaintiffs expressed their disapproval to the defendants and
requested that said offensive material covering the lobby walls be removed and replaced
visually offensive to many but it caused a substantial reduction in the fair market value of
the entire building and the plaintiffs units and a reduction in the net rental income
received.
139. That these actions by the defendant are arbitrary, capricious, serve no
legitimate relationship to the welfare of the condominium, was installed without notice or
consideration of relevant facts, and it was clearly beyond the scope of the boards
authority to do it..
140. Said offensive political materials covering the lobby walls have
materially altered the contract between the plaintiffs and defendants and have
substantially reduced the fair market value of the entire condo and plaintiffs units.
141. For all the reasons stated above, the plaintiffs have sustained irreparable
monetary harm.
142. Plaintiffs desire a judicial determination of their rights and duties, and a
143. A judicial declaration is necessary and appropriate at this time under the
circumstances in order that plaintiffs may ascertain their rights as alleged. Plaintiffs will
continue to suffer the above-described harm unless and until such declaration is made.
over and/or remove said offensive political propaganda from the lobby walls, replace it
with neutral non-political content and that the defendants be enjoined from this conduct.
144. Plaintiffs repeat, reiterate and re-allege each and every allegation contained
in paragraph(s) 1 through 144 inclusive, with the same force and effect as though
145. Each holiday the defendants erect, display and/or maintain within the lobby
devices/figurines, and/or items that make noise and/or play loud holiday music constantly
which make and/or create excessive and unreasonable and prohibited noises which are a
menace to public health, comfort, convenience, safety, welfare and prosperity of the
condominium unit owners and inhabitants; especially those that are on the first floor in
the vicinity of the lobby and where the holiday decorations are displayed.
148. The musical displays play loud holiday music 24/7 throughout the day/night
which make and/or create excessive and unreasonable and prohibited noises which are a
menace to public health, comfort, convenience, safety, welfare and prosperity of the
condominium unit owners and inhabitants; especially those that are on the first floor in
the vicinity of the lobby and where the holiday decorations are displayed.
149. Unit 1D, which is owned by the plaintiffs, is immediately adjacent to the
150. The music/noise has caused plaintiffs tenants in Unit 1D to experience great
annoyance and alarm and is denying them of their quiet enjoyment of their rented unit.
151. Despite the plaintiffs and other condo residents repeated efforts to have the
defendants stop and/or reduce the duration and/or the extent of the noise level, the
defendants have refused to do so. Rather, in bad faith, the defendants have actually
152. That these actions by the defendants are unreasonable for the further reason
that it has caused a substantial reduction in the fair market value of the plaintiffs units
153. These actions by the defendant are arbitrary, capricious, serve no legitimate
consideration of relevant facts, and were clearly beyond the scope of the boards authority
to do it.
154. Said excessive noise have materially altered the contract between the
plaintiffs and defendants and have substantially reduced the fair market value of
plaintiffs units.
155. For all the reasons stated above, the plaintiffs have sustained irreparable
monetary harm.
156. Plaintiffs desire a judicial determination of their rights and duties, and a
157. A judicial declaration is necessary and appropriate at this time under the
circumstances in order that plaintiffs may ascertain their rights as alleged. Plaintiffs will
continue to suffer the above-described harm unless and until such declaration is made.
from making excessive noise/music and that the defendants be enjoined from this
in paragraph(s) 1 through 158 inclusive, with the same force and effect as though
159. The defendants have unlawfully imposed rules, restrictions and policies
160. Any unit owner and/or tenant who does/did not strictly comply with said
161. For any condo board to impose a fine, they must have explicit authority
163. Even if the governing documents permitted the defendants to impose a fine
for some wrongdoing, said fine must represent a reasonable approximation of the actual
and contrary to the Declaration and By-Laws. Further, the fines imposed are unduly
excessive, against public policy, vague, arbitrary and an unreasonable financial penalty.
166. These fines imposed by the defendant are arbitrary, capricious, serve no
legitimate relationship to the welfare of the condominium, were initiated without notice
or consideration of relevant facts, and were clearly beyond the scope of the defendants
between the plaintiffs and defendants and have substantially reduced the fair market
168. For all the reasons stated above, the plaintiffs have sustained irreparable
monetary harm.
169. Plaintiffs desire a judicial determination of their rights and duties, and a
170. A judicial declaration is necessary and appropriate at this time under the
circumstances in order that plaintiffs may ascertain their rights as alleged. Plaintiffs will
continue to suffer the above-described harm unless and until such declaration is made.
stricken, voided and/or declared null and that the defendants be directed to refund the
monies paid by all unit owners/tenants for this unauthorized and excessive fines and that
the defendants be enjoined from trying to impose these unreasonable fines again.
171. Plaintiffs repeat, reiterate and re-allege each and every allegation contained
in paragraph(s) 1 through 171 inclusive, with the same force and effect as though
172. On February 9, 2017, the plaintiffs received a Notice of Demand from the
173. That said notice imposed a fine of $500 on the 1D tenant and/or plaintiffs
by the tenant of a Christmas Tree at the curbside after the Holiday Season.
175. That said notice further claimed that plaintiffs tenant in 1D was a deranged,
176. Upon information and belief, the tenant in 1D was disposing a Christmas
Tree at the curbside pursuant to the instructions of the NYC Department of Sanitation and
177. That at no time hereafter mentioned did the Condo Declaration and/or By-
Laws ever prohibit this conduct, nor permit a fine and/or penalty for it.
179. That at no time hereafter mentioned did the Condo House Rules ever
180. That the defendants have no right and/or jurisdiction over this conduct in
that the disposal of a Christmas Tree is not only regulated and permitted under NYC Law,
181. Even if the governing documents permitted the defendants to impose a fine
for some wrongdoing, the prohibited wrongdoing must be specifically defined in the
governing documents, and said fine must represent a reasonable approximation of the
182. While this alleged violation cost the condo nothing, the governing
documents do not prohibit this conduct, nor do they permit any fine for it.
183. The actions of the defendants to impose fine(s) is unauthorized, unlawful
and contrary to the Declaration and By-Laws. Further, the fines imposed are unduly
excessive, against public policy, vague, arbitrary and an unreasonable financial penalty.
184. These fines imposed by the defendant are arbitrary, capricious, serve no
legitimate relationship to the welfare of the condominium, were initiated without notice
or consideration of relevant facts, and were clearly beyond the scope of the defendants
185. Said imposition of these excessive fines have materially altered the contract
between the plaintiffs and defendants and have substantially reduced the fair market
186. For all the reasons stated above, the plaintiffs have sustained irreparable
monetary harm.
187. Plaintiffs desire a judicial determination of their rights and duties, and a
188. A judicial declaration is necessary and appropriate at this time under the
circumstances in order that plaintiffs may ascertain their rights as alleged. Plaintiffs will
continue to suffer the above-described harm unless and until such declaration is made.
stricken, voided and/or declared null and that the defendants be enjoined from trying to
189. Plaintiffs repeat, reiterate and re-allege each and every allegation contained
in paragraph(s) 1 through 189 inclusive, with the same force and effect as though
190. That in regards to the 2-19-17 notice and the unlawful, unauthorized and
unenforceable fine thereon, the defendants undertook a series of actions to harass, annoy,
191. That the defendants did repeatedly circulate and post notices, with false
derogatory, libelous and slanderous pictures and/or language against said tenants,
throughout the condo building, lobby area and directly on the front door of apartment 1D.
192. That this repeated action became so annoying and troubling for said tenant
that they were compelled to file a criminal complaint with the NYPD.
192. That the aforesaid notices containing false derogatory information were
further sent directly to the tenants place of employment and elsewhere to third parties
with the specific intent to harass, embarrass and annoy said tenants with their respective
193. Upon information and belief, that there was no just and/or legal reason for
the aforesaid actions and it was initiated and conducted by the defendants specifically to
force the tenants in apartment 1D to move and cause plaintiffs economic loss.
relationship to the welfare of the condominium, deliberately singled out the plaintiffs and
plaintiffs tenant in 1D and subjected them to harmful treatment, was taken without notice
or consideration of relevant facts, is clearly beyond the scope of the boards authority, and
196. For all the reasons stated above, the tenant in 1D has expressed a desire to
leave, and plaintiffs had to reduce the rent in order to get them to stay. Plaintiffs have
197. Plaintiffs demand damages for the lost rental income and desire a judicial
determination of their rights and duties, and a declaration as to the validity of the actions
of the defendants..
198. A judicial declaration is necessary and appropriate at this time under the
circumstances in order that plaintiffs may ascertain their rights as alleged. Plaintiffs will
continue to suffer the above-described harm unless and until such declaration is made.
rental income and directing that the defendants be ordered and directed to refrain from
this conduct and that the defendants be enjoined from doing it again.
199. Plaintiffs repeat, reiterate and re-allege each and every allegation contained
in paragraph(s) 1 through 199 inclusive, with the same force and effect as though
200. That the defendants recently erected a large structure/shed in the rear yard of
any plans and/or specifications on file with the NYC Building Department.
202. That said structure does not have a certificate of occupancy and is an illegal
structure.
203. That several violations and open complaints have been issued by the NYC
204. That said large illegal structure/shed was erected immediately outside and
adjacent to the bedroom and kitchen windows of plaintiffs apartment 1D and partially
block/deprive the air, view and light from those windows for the inhabitants of apartment
1D, and further creates a dangerous hazard for emergency egress and access for would-be
burglars.
205. That this illegal structure/shed has caused the present tenants in apartment
1D a deprivation of the air, view and light that they had when they first moved in.
206. That the erection of this illegal structure/shed has caused a substantial
reduction in the fair market rental/sale value of the plaintiffs unit 1D and will dissuade
would-be prospective renters/buyers from renting/buying due to the loss of this air, view
and light.
207. That the erection of this illegal building/shed directly outside plaintiffs
apartment 1D by the defendants was done specifically and intentionally to try to force
plaintiffs tenant in 1D to move, to reduce the fair market sale/rental value of said unit
208. That despite the plaintiffs repeated efforts to try to get the defendants to
209. That there was no just and/or legal reason for this structure. That is was
harmful treatment, was taken without notice or consideration of relevant facts, is clearly
beyond the scope of the boards authority, and was perpetrated in bad faith.
210. That this conduct was so egregious and intentionally perpetrated by the
211. For all the reasons stated above, the plaintiffs have sustained irreparable
monetary harm.
212. Plaintiffs desire a judicial determination of their rights and duties, and a
declaration as to the validity of the actions of the defendants and monetary compensation
213. A judicial declaration is necessary and appropriate at this time under the
circumstances in order that plaintiffs may ascertain their rights as alleged. Plaintiffs will
continue to suffer the above-described harm unless and until such declaration is made.
ordered to immediately remove said illegal structure/shed and refrain from trying to erect
214. Plaintiffs repeat, reiterate and re-allege each and every allegation contained
in paragraph(s) 1 through 214 inclusive, with the same force and effect as though
215. The defendants have initiated numerous changes, demands and policies
without seeking unit owner approval in direct violation of the Declaration, By-Laws and
Condo Act.
216. The defendants have further taken numerous aggressive and illegal actions
directly against the plaintiffs and/or their tenants in an attempt to reduce the value of
plaintiffs units, infringe upon plaintiffs fee simple rights, and to try to force the tenants to
leave.
217. The plaintiffs have repeatedly protested and made numerous amicable
attempts to have the defendants act reasonably, in good faith, in accordance with the
218. That the defendants have refused to act responsibly, have undertaken a
conscious and systematic policy to do everything they could to reduce the desirability and
profitability of plaintiffs units, and infringe upon the plaintiffs fee simple ownership
rights therein.
218. That the defendants have brazenly and blatantly, on several occasions, made
their intentions very clear. That the defendants would do everything they could to try to
219. That there was no just and/or legal reason for the magnitude and extent of all
the fines, fees, polices and hostile actions of the defendants against the plaintiffs and/or
their tenants. That all these actions were intentionally initiated and conducted by the
220. That the actions of the defendants were arbitrary, capricious, served no
legitimate relationship to the welfare of the condominium, deliberately singled out the
plaintiffs and subjected the plaintiffs to harmful treatment, was taken without notice or
consideration of relevant facts, is clearly beyond the scope of the boards authority, and
222. For all the reasons stated above, the plaintiffs have sustained irreparable
monetary harm.
223. Plaintiffs desire a judicial determination of their rights and duties, and a
224. A judicial declaration is necessary and appropriate at this time under the
circumstances in order that plaintiffs may ascertain their rights as alleged. Plaintiffs will
continue to suffer the above-described harm unless and until such declaration is made.
ordered and directed to refrain from this conduct and that the defendants be enjoined
225. Plaintiffs repeat, reiterate and re-allege each and every allegation contained
in paragraph(s) 1 through 225 inclusive, with the same force and effect as though
226. That the NYS Condo Act, the condo Declaration and By-Laws are the
governing documents between the unit owners and the condominium board.
227. The relationship between the condominium unit owners and the condo board
is contractual, and the governing documents spell out the legal rights between the parties.
228. That for all the allegations and statements made in the prior causes of action,
the defendants; The 47-55 39th Place Condominium, have breached the contract with the
39th Place Condominium, for breach of contract in the amount of $500,000.00 for each
230. Plaintiffs repeat, reiterate and re-allege each and every allegation contained
in paragraph(s) 1 through 230 inclusive, with the same force and effect as though
231. That the NYS Condo Act, the condo Declaration and By-Laws are the
governing documents between the unit owners and the condominium board.
232. That the defendants had a fiduciary duty to act reasonably, responsibly and
233. That for all the allegations and statements made in the prior causes of action,
the actions of the defendants; The 47-55 39th Place Condominium, were arbitrary,
deliberately singled out the plaintiffs and subjected the plaintiffs to harmful treatment,
was taken without notice or consideration of relevant facts, was/is clearly beyond the
234. For all the reasons stated above, the plaintiffs have sustained irreparable
39th Place Condominium, for Breach of Fiduciary Duty in the amount of $500,000.00 for
each unit; totaling $1,000,000.00.
235. Plaintiffs repeat, reiterate and re-allege each and every allegation contained
in paragraph(s) 1 through 235 inclusive, with the same force and effect as though
236. The totality and extent of the defendants numerous, fines, fees, policies and
business judgment and logic and were clearly perpetrated and executed in bad faith.
237. That for all the allegations and statements made in the prior causes of action,
the actions of the defendants were arbitrary, capricious, served no legitimate relationship
to the welfare of the condominium, deliberately singled out the plaintiffs and subjected
the plaintiffs to harmful treatment, was taken without notice or consideration of relevant
facts, is clearly beyond the scope of the boards authority, and was perpetrated in bad
faith.
238. For all the reasons stated above, the plaintiffs have sustained irreparable
monetary harm due to this blatant disregard for the governing documents and
239. That this was a clear breach of the defendants fiduciary duties.
240. This breach of fiduciary duty by the defendants is so egregious that the
in paragraph(s) 1 through 241 inclusive, with the same force and effect as though
that has no legitimate purpose and is clearly contrary and in violation of governing
243. The individual board members all collectively were involved in the policies
244. That all written notices by defendants, responses to plaintiffs objections and
confirmed that all the individual named defendants herein, were all in agreement, a part
of this conspiracy to intentionally deprive plaintiffs and other unit owners of their fees
simple ownership rights. That the individual defendants were all actually involved,
actively participated and are independently personally responsible for this egregious
tortious conduct.
245. That for all the allegations and statements made in the prior causes of
action, the actions of the individual defendants named herein were arbitrary, capricious,
out the plaintiffs and subjected the plaintiffs and/or their tenants to harmful treatment,
was taken without notice or consideration of relevant facts, is clearly beyond the scope of
246. For all the reasons stated above, the plaintiffs have sustained irreparable
monetary harm due to this blatant disregard for the governing documents and
intentionally inflicted conduct and bad faith by the individually named defendants.
247. That the individually named defendants also had a fiduciary duty to act
248. That the individually named defendants breached this fiduciary duty they
249. That this breach of fiduciary duty by the defendants is so egregious that the
named defendants for Punitive Damages in the amount of $50,000.00 each; respectively.
250. Plaintiffs repeat, reiterate and re-allege each and every allegation contained
in paragraph(s) 1 through 250 inclusive, with the same force and effect as though
251. Upon information and belief, the major initiator and instigator of all the
fines, penalties, burdensome policies and tortious egregious conduct was Board Member,
252. Upon information and belief, it is Neal Milano who, with the permission
and/or authority of the individual board members, initiated most of the harassment
253. Upon information and belief, prior to 2011, Neal Milano and/or one of his
family members, owed a very large monetary assessment to the then condominium board
255. That once Neal Milano and the new board was able to seize control of the
condo board, remove the private managing agent, and have the new board, which he was
a member/officer of, self-manage the condominium, he conspired and colluded with other
board members, to extinguish and remove said lien without paying any part thereof.
256. That at no time herein were the unit owners contacted, apprised of the
257. That pursuant to the governing documents this action would have required
258. That this self-dealing and collusion was done in direct violation of the
259. That the plaintiffs, condo and all unit owners were damaged in that they
were all deprived of the value of the assessment, which could be used for the greater
condo good.
260. For all the reasons stated above, the plaintiffs and all condo unit owners
collusion and self-dealing on the part of Neal Milano and the other named defendants..
262. That Neal Milano must be removed as Secretary, Board Member and/or
Project Manager of the condo board of managers immediately, and he must not be
allowed to deal with the management of the condo and/or the books and records until
declaration as to the validity of the actions of the defendants and Neal Milano.
264. A judicial declaration is necessary and appropriate at this time under the
circumstances in order that plaintiffs may ascertain their rights as alleged. Plaintiffs and
all unit owners will continue to suffer the above-described harm unless and until such
declaration is made.
immediately, and that the defendants be directed to turn over and disclose all the books
and records involving this matter and any other the court deems just and proper.
265. Plaintiffs repeat, reiterate and re-allege each and every allegation contained
in paragraph(s) 1 through 265 inclusive, with the same force and effect as though
266. Plaintiffs made numerous attempts to amicably resolve this matter with
defendants.
in great detail all the issues involved, provided the controlling NY authority in support
thereon and gave the defendants ample time to correct and/or satisfactorily address these
issues.
268. Defendants failed and/or refused to even make an attempt to justify their
Actions and/or meet with the plaintiffs, and they continued to act in bad faith.
269. The plaintiffs were left no choice but to commence this action to safe guard
their respective legal rights. The expected reasonable legal cost to prosecute said matter is
approximately $50,000.00.
270. Public Policy and precedence permit for attorneys fees when a condo board
acts unreasonably, in bad faith and grossly outside the boundaries of the governing
documents.
amount of $50,000.00.
WHEREFORE, the plaintiffs demand judgment against the defendants for the
requested relief in the separate causes of action, plus interest, costs, disbursements,
reasonable attorneys fees over and above what has already been requested, plus any
______________________________
IANNECE & CALVACCA, ESQS
By: Lynn Calvacca
Attorneys for Plaintiffs
160-05 Horace Harding Expwy
Flushing, New York 11365
(718) 961-5550