Stauber v Board of Directors of 8 E. 96th St., Inc. 2024 NY Slip Op 33257(U) September 17, 2024 Supreme Court, New York County Docket Number: Index No. 159156/2020 Judge: Paul A. Goetz Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 159156/2020 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 09/17/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. PAUL A. GOETZ PART 47 Justice ---------------------------------------------------------------------------------X INDEX NO. 159156/2020 ELIZABETH STAUBER, AS THE EXECUTOR OF THE ESTATE OF MARCUS A. COHEN MOTION DATE 02/22/2024
Plaintiff, MOTION SEQ. NO. 001
-v- THE BOARD OF DIRECTORS OF 8 EAST 96TH STREET, DECISION + ORDER ON INC., MOTION Defendant. ---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 44, 45, 46, 47, 48, 49, 50, 51, 52, 54, 55, 56, 57, 58, 59, 60, 61 were read on this motion to/for SUMMARY JUDGMENT (AFTER JOINDER) .
This action is brought by the executor of the estate of decedent Marcus A. Cohen, who
was a lessee and shareholder in the co-operative building located at 8 East 96th Street, New York,
NY 10128 (the co-op). Plaintiff moves for summary judgment pursuant to CPLR § 3212 on her
two causes of action for (i) a declaratory judgment that her application to be assigned Cohen’s
lease and corresponding shares must be approved by defendant, and (ii) a permanent injunction
compelling defendant to approve the application and transfer the shares to plaintiff, as tenants in
common with Lynne S. Levine, decedent’s ex-wife.
BACKGROUND
Plaintiff alleges that Cohen and Levine “were married in June 1987 and sometime
thereafter became owners of the shares and resided in [] apartment [1C]”1 of the co-op, which
1 The original lease agreement has not been submitted. 159156/2020 ELIZABETH STAUBER, AS THE vs. BOARD OF DIRECTORS OF 8 Page 1 of 6 Motion No. 001
1 of 6 [* 1] INDEX NO. 159156/2020 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 09/17/2024
was operated by defendant The Board of Directors of 8 East 96th Street Inc. (the board)
(NYSCEF Doc No 39 ¶ 4). They divorced in March 2010 and Levine moved out sometime that
year (id. ¶¶ 5, 8). “As part of their marital settlement agreement, they agreed that they would
own the shares to the Apartment as joint tenants in common” (id. ¶¶ 2-6). Thus, they entered into
a lease agreement with the co-op, dated May 19, 2011, which provided that Cohen and Levine
were “the owner[s] of 33 shares of the Lessor, to which this lease is appurtenant and which have
been allocated to apartment 1C in the building” (NYSCEF Doc No 30). The lease also provided
that “[if] the Lessee shall die, consent shall not be unreasonably withheld to an assignment of the
lease and shares to a financially responsible member of the Lessee’s family” (id. § 15(c)).
Cohen continued to reside in the apartment on his own (NYSCEF Doc No 39 ¶ 8). He did
not have any children, but gave plaintiff, his niece, power of attorney on April 24, 2017
(NYSCEF Doc No 31) and appointed her as his health care proxy on March 11, 2018 (NYSCEF
Doc No 32). Cohen passed away on November 24, 2018, and plaintiff was appointed as the
executor of his estate (NYSCEF Doc No 34). Cohen’s will also devised his residuary estate,
including any property interests, to plaintiff (NYSCEF Doc No 33). On July 1, 2019, Levine
transferred her own interest and shares in the apartment to plaintiff (NYSCEF Doc No 35). On
January 15, 2020, plaintiff submitted an application to the board to be transferred Cohen’s right
to possession and shares in the apartment (NYSCEF Doc No 36). One month later, the board
rejected plaintiff’s application (NYSCEF Doc No 48).
Plaintiff alleges that she is financially responsible, as indicated by the financial
information provided in her application, which shows her ability to pay the apartment’s
maintenance charges (NYSCEF Doc No 1 ¶ 18). She alleges that she is a member of Cohen’s
family within the meaning of the lease, as she was Cohen’s closest blood relative, was treated
159156/2020 ELIZABETH STAUBER, AS THE vs. BOARD OF DIRECTORS OF 8 Page 2 of 6 Motion No. 001
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like a daughter, and cared for him during his illnesses (id. ¶ 12). Plaintiff also notes that the
board denied her application without holding an interview or providing any reason for its
decision (id. ¶ 19). She thus asserts that the assignment was unreasonably withheld by the board
in violation of the lease.
The board, however, alleges that its decision to reject her application was reasonable
based on plaintiff’s personal history with the co-op and its residents. It alleges that Cohen’s
health had been deteriorating for several years before his passing, but “no one on the Building’s
staff or anyone who lives in the Building has any record or recollection of Plaintiff ever coming
to visit or to aid Mr. Cohen” (NYSCEF Doc No 44 ¶¶ 7-13). It was only in the last few weeks
before Cohen’s death that plaintiff “arrived at the building making demands of the staff, using
foul language . . . and attempting to remove personal items belonging to Mr. Cohen from his
apartment,” which “began a pattern of disruptive behavior each time Plaintiff came to the
Building” (id. ¶¶ 11-14). Some examples include plaintiff: staying in Cohen’s apartment
overnight, though she was told not to; threatening to call 911 because of the children crying in
the neighboring apartment; “monopoliz[ing] staff time with personal projects”; causing false
alarms in non-emergency situations; and yelling at residents or otherwise making them
uncomfortable (id. ¶¶ 21-22).
DISCUSSION
“It is well settled that ‘the proponent of a summary judgment motion must make a prima
facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to
demonstrate the absence of any material issues of fact.’” (Pullman v Silverman, 28 NY3d 1060,
1062 [2016], quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). “Failure to make
such showing requires denial of the motion, regardless of the sufficiency of the opposing
159156/2020 ELIZABETH STAUBER, AS THE vs. BOARD OF DIRECTORS OF 8 Page 3 of 6 Motion No. 001
3 of 6 [* 3] INDEX NO. 159156/2020 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 09/17/2024
papers.” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985] [internal citations
omitted]). “Once such a prima facie showing has been made, the burden shifts to the party
opposing the motion to produce evidentiary proof in admissible form sufficient to raise material
issues of fact which require a trial of the action.” (Cabrera v Rodriguez, 72 AD3d 553, 553-554
[1st Dept 2010], citing Alvarez, 68 NY2d at 342).
“The court’s function on a motion for summary judgment is merely to determine if any
triable issues exist, not to determine the merits of any such issues or to assess credibility.”
(Meridian Mgmt. Corp. v Cristi Cleaning Serv. Corp., 70 AD3d 508, 510-511 [1st Dept 2010]
[internal citations omitted]).
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Stauber v Board of Directors of 8 E. 96th St., Inc. 2024 NY Slip Op 33257(U) September 17, 2024 Supreme Court, New York County Docket Number: Index No. 159156/2020 Judge: Paul A. Goetz Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 159156/2020 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 09/17/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. PAUL A. GOETZ PART 47 Justice ---------------------------------------------------------------------------------X INDEX NO. 159156/2020 ELIZABETH STAUBER, AS THE EXECUTOR OF THE ESTATE OF MARCUS A. COHEN MOTION DATE 02/22/2024
Plaintiff, MOTION SEQ. NO. 001
-v- THE BOARD OF DIRECTORS OF 8 EAST 96TH STREET, DECISION + ORDER ON INC., MOTION Defendant. ---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 44, 45, 46, 47, 48, 49, 50, 51, 52, 54, 55, 56, 57, 58, 59, 60, 61 were read on this motion to/for SUMMARY JUDGMENT (AFTER JOINDER) .
This action is brought by the executor of the estate of decedent Marcus A. Cohen, who
was a lessee and shareholder in the co-operative building located at 8 East 96th Street, New York,
NY 10128 (the co-op). Plaintiff moves for summary judgment pursuant to CPLR § 3212 on her
two causes of action for (i) a declaratory judgment that her application to be assigned Cohen’s
lease and corresponding shares must be approved by defendant, and (ii) a permanent injunction
compelling defendant to approve the application and transfer the shares to plaintiff, as tenants in
common with Lynne S. Levine, decedent’s ex-wife.
BACKGROUND
Plaintiff alleges that Cohen and Levine “were married in June 1987 and sometime
thereafter became owners of the shares and resided in [] apartment [1C]”1 of the co-op, which
1 The original lease agreement has not been submitted. 159156/2020 ELIZABETH STAUBER, AS THE vs. BOARD OF DIRECTORS OF 8 Page 1 of 6 Motion No. 001
1 of 6 [* 1] INDEX NO. 159156/2020 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 09/17/2024
was operated by defendant The Board of Directors of 8 East 96th Street Inc. (the board)
(NYSCEF Doc No 39 ¶ 4). They divorced in March 2010 and Levine moved out sometime that
year (id. ¶¶ 5, 8). “As part of their marital settlement agreement, they agreed that they would
own the shares to the Apartment as joint tenants in common” (id. ¶¶ 2-6). Thus, they entered into
a lease agreement with the co-op, dated May 19, 2011, which provided that Cohen and Levine
were “the owner[s] of 33 shares of the Lessor, to which this lease is appurtenant and which have
been allocated to apartment 1C in the building” (NYSCEF Doc No 30). The lease also provided
that “[if] the Lessee shall die, consent shall not be unreasonably withheld to an assignment of the
lease and shares to a financially responsible member of the Lessee’s family” (id. § 15(c)).
Cohen continued to reside in the apartment on his own (NYSCEF Doc No 39 ¶ 8). He did
not have any children, but gave plaintiff, his niece, power of attorney on April 24, 2017
(NYSCEF Doc No 31) and appointed her as his health care proxy on March 11, 2018 (NYSCEF
Doc No 32). Cohen passed away on November 24, 2018, and plaintiff was appointed as the
executor of his estate (NYSCEF Doc No 34). Cohen’s will also devised his residuary estate,
including any property interests, to plaintiff (NYSCEF Doc No 33). On July 1, 2019, Levine
transferred her own interest and shares in the apartment to plaintiff (NYSCEF Doc No 35). On
January 15, 2020, plaintiff submitted an application to the board to be transferred Cohen’s right
to possession and shares in the apartment (NYSCEF Doc No 36). One month later, the board
rejected plaintiff’s application (NYSCEF Doc No 48).
Plaintiff alleges that she is financially responsible, as indicated by the financial
information provided in her application, which shows her ability to pay the apartment’s
maintenance charges (NYSCEF Doc No 1 ¶ 18). She alleges that she is a member of Cohen’s
family within the meaning of the lease, as she was Cohen’s closest blood relative, was treated
159156/2020 ELIZABETH STAUBER, AS THE vs. BOARD OF DIRECTORS OF 8 Page 2 of 6 Motion No. 001
2 of 6 [* 2] INDEX NO. 159156/2020 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 09/17/2024
like a daughter, and cared for him during his illnesses (id. ¶ 12). Plaintiff also notes that the
board denied her application without holding an interview or providing any reason for its
decision (id. ¶ 19). She thus asserts that the assignment was unreasonably withheld by the board
in violation of the lease.
The board, however, alleges that its decision to reject her application was reasonable
based on plaintiff’s personal history with the co-op and its residents. It alleges that Cohen’s
health had been deteriorating for several years before his passing, but “no one on the Building’s
staff or anyone who lives in the Building has any record or recollection of Plaintiff ever coming
to visit or to aid Mr. Cohen” (NYSCEF Doc No 44 ¶¶ 7-13). It was only in the last few weeks
before Cohen’s death that plaintiff “arrived at the building making demands of the staff, using
foul language . . . and attempting to remove personal items belonging to Mr. Cohen from his
apartment,” which “began a pattern of disruptive behavior each time Plaintiff came to the
Building” (id. ¶¶ 11-14). Some examples include plaintiff: staying in Cohen’s apartment
overnight, though she was told not to; threatening to call 911 because of the children crying in
the neighboring apartment; “monopoliz[ing] staff time with personal projects”; causing false
alarms in non-emergency situations; and yelling at residents or otherwise making them
uncomfortable (id. ¶¶ 21-22).
DISCUSSION
“It is well settled that ‘the proponent of a summary judgment motion must make a prima
facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to
demonstrate the absence of any material issues of fact.’” (Pullman v Silverman, 28 NY3d 1060,
1062 [2016], quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). “Failure to make
such showing requires denial of the motion, regardless of the sufficiency of the opposing
159156/2020 ELIZABETH STAUBER, AS THE vs. BOARD OF DIRECTORS OF 8 Page 3 of 6 Motion No. 001
3 of 6 [* 3] INDEX NO. 159156/2020 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 09/17/2024
papers.” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985] [internal citations
omitted]). “Once such a prima facie showing has been made, the burden shifts to the party
opposing the motion to produce evidentiary proof in admissible form sufficient to raise material
issues of fact which require a trial of the action.” (Cabrera v Rodriguez, 72 AD3d 553, 553-554
[1st Dept 2010], citing Alvarez, 68 NY2d at 342).
“The court’s function on a motion for summary judgment is merely to determine if any
triable issues exist, not to determine the merits of any such issues or to assess credibility.”
(Meridian Mgmt. Corp. v Cristi Cleaning Serv. Corp., 70 AD3d 508, 510-511 [1st Dept 2010]
[internal citations omitted]). The evidence presented in a summary judgment motion must be
examined “in the light most favorable to the non-moving party” (Schmidt v One New York Plaza
Co., 153 AD3d 427, 428 [2017], quoting Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 339
[2011]) and bare allegations or conclusory assertions are insufficient to create genuine issues of
fact (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]). If there is any doubt as to the
existence of a triable fact, the motion for summary judgment must be denied (id.).
First, the board argues that plaintiff’s challenge of the co-op’s decision to deny her
application is barred by the four-month statute of limitations applicable to actions based on a
corporation’s alleged breach of its own governing documents (Buttitta v Greenwich House Coop.
Apts., Inc., 11 AD3d 250, 251 [1st Dept 2004] [plaintiffs’ allegation “that the board acted in bad
faith by treating them differently from other withdrawing shareholders . . . [was] barred by the
four-month limitations period of CPLR 217 which plainly applies to defendant corporation”]).
As plaintiff notes, however, “this is an action [arising from] a proprietary lease [and was
therefore] timely commenced within six years of defendant’s denial of [plaintiff’s] application
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for transfer of the apartment from [the] estate” (Estate of Del Terzo v 33 Fifth Ave. Owners
Corp., 136 AD3d 486, 488 [1st Dept 2016]).
Next, the board argues that plaintiff’s motion is premature, as discovery is incomplete;
notably, plaintiff has yet to fully respond to defendant’s document demands and defendant has
not had a chance to depose plaintiff. In reply, plaintiff notes that the cases cited by defendant
“are all personal injury actions wherein material facts regarding the injury precluded summary
judgement [whereas] here, [] the dispute involves the terms of an unambiguous Proprietary
Lease” (NYSCEF Doc No 58). Plaintiff also argues that the affidavit of the president of the
board Pamela Roach is inadmissible hearsay since Roach does not have personal knowledge of
the incidents described (NYSCEF Doc No 44 [outlining incidents involving plaintiff and
complaints received from the co-op’s residents and staff]), and therefore defendant failed to
create a material issue of fact. Plaintiff’s entitlement to the relief sought turns on whether the
board’s decision to withhold consent to the assignment was reasonable, and whether the board
acted reasonably depends on facts that have not yet been established through discovery (MVB
Collision, Inc. v Progressive Ins. Co., 129 A.D.3d 1040, 1041 [2nd Dept 2015] [“A party
contending that a summary judgment motion is premature must demonstrate that discovery might
lead to relevant evidence or that the facts essential to justify opposition to the motion were
exclusively within the knowledge and control of the movant”]). Defendant must be afforded the
opportunity to collect direct testimony and other evidence to support its position that the board
acted reasonably in denying plaintiff’s application. Accordingly, plaintiff’s motion will be
denied.
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CONCLUSION
Based on the foregoing, it is
ORDERED that plaintiff’s motion for summary judgment is denied.
9/17/2024 DATE PAUL A. GOETZ, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
GRANTED X DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
159156/2020 ELIZABETH STAUBER, AS THE vs. BOARD OF DIRECTORS OF 8 Page 6 of 6 Motion No. 001
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