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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after the instant motion was filed, that had Cavaleri become a Board member (see n 1,
supra), no application has been made to reflect those changes in the complaint. Further,
because the injunctive relief sought herein arises from Stable's alleged breaches of the proprietary
lease, the individual Board members and the Board are improper parties to this cause of action,
and the second cause of action is dismissed as against the Board and its individual members here,
where, pursuant to paragraph 2 of the proprietary lease, the lessor is the party required to make
repairs not required of the lessee under proprietary lease paragraph 18 (see also, id.,
¶ 7), and where an injunction against Stable would also be enforceable against those who
act for it. Cf. Weinreb v 37 Apts.
Corp., 97 AD3d 54, 58 (1st Dept 2012). Moreover, as indicated hereinafter, all breach of
fiduciary duty causes of action asserted in this complaint have been dismissed. See id. In
addition, once it is ultimately determined whether it is Stable or Dogwood LLC which is
responsible for a particular repair, it is unclear who will be on the Board (id.), a fact
highlighted by the ongoing changes to the Board.

With respect to Dogwood LLC's allegation that it lacks an adequate remedy at law, whether
the obligation to perform some or all of the claimed necessary repairs will fall on Stable, which,
under the proprietary lease, is responsible for ensuring the building's structural integrity in the
Apartment's exclusive areas, provided the need for the repair is not "necessitated, or deterioration
accelerated" by the lessee's use (Peterson affidavit in support of motion to dismiss amended 2017
complaint, exhibit 2, Proprietary lease, ¶ 7, at 9), has not yet been determined. Under the