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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occupancy. If, in [*31]the future, a cellar unit proprietary lessee
unreasonably fails to comply with any required inspection, Dogwood LLC is free to take any
steps it deems necessary to obtain compliance.

The derivative eleventh cause of action alleges a breach of fiduciary duty by those who were
Board members when the amended 2017 complaint was filed, premised on the Board having
"repeatedly" been advised by "Dogwood" LLC of the illegal occupancy and having allegedly
"done nothing about it." Amended 2017 complaint, ¶¶ 228, 231. This cause of action,
which must be pleaded in conformity with the particularity requirements of CPLR 3016 (b), is
deficient as to El-Sawy because the only specific notification alleged in the complaint was the
commencement of the original 2015 complaint when El-Sawy was not a Board member. There is
no particularized allegation that El-Sawy was otherwise notified. Moreover, the amended 2017
complaint does not attempt to distinguish among any damages allegedly caused by each
individual Board member's alleged inaction, in this case where El-Sawy became a Board member
later than Youngberg and Matanic. Neither does the amended 2017 complaint set forth the
precise term of office of each such Board member, which would relate to any damages
attributable to each member's alleged inaction. Indeed, this cause of action fails to allege any
damages whatsoever, since the DOB has not fined Stable. The complaint only alleges future
damages which "could" arise, such as fines, penalties, court fees, and the possible acceleration of
the building's mortgage due to the building's lack of compliance with the certificate of
occupancy. Amended 2017 complaint, ¶ 234; see also Pokoik v Pokoik, 115 AD3d