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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See id., ¶¶ 89, 172, 228. The Board was not a party to the original July 2015
complaint, which, is the only specific, non-conclusory notification of this illegality alleged in the
amended 2017 complaint, which contains no prior allegation of any particular demand made of
the Board by any identified individual on Dogwood LLC's behalf to take any steps in an attempt
to deal with the cellar units' lack of conformity with the certificate of occupancy. Instead, the
amended 2017 complaint merely sets forth conclusory allegations regarding demands.
See Amended 2017 complaint, ¶¶ 3, 112, 136, 138, 139.

The amended 2017 complaint does not distinguish among the various Board members
regarding when Dogwood LLC allegedly informed the Board of the alleged illegal occupancy of
the cellars. When the July 2015 action was commenced, the Board was composed of Matanic,
Youngberg (the only Board member at that time who occupied a cellar unit), and Frank, who is
not a party to the 2017 action. Thus, even if a demand had been made of the 2015 Board, the
cellar unit occupants did not control the Board. Further, there is no allegation in the amended
2017 complaint that Dogwood LLC ever notified El-Sawy of the issue after he became a Board
member at some unspecified time in 2016. In any case, the amended 2017 complaint alleges
demand futility insofar as two of the three Board members at the time the amended 2017
complaint was filed, i.e., El-Sawy and Youngberg, because they were cellar unit proprietary
lessees, were incapable of impartiality and deciding whether to take steps to halt the illegal uses
and restore the nonconforming parts of the cellar levels to conforming space. See Marx v
Akers, 88 NY2d 189, 198-199, 200 (1996) (demand is excused as futile when complaint