retaliation under Real Property Law § 223-b by pleading that the board
defendants issued a notice of default just five weeks after plaintiffs complained about the
quality of the water in their apartments (Real Property Law § 223-b [1]
["(n)o landlord . . . shall serve a notice to quit upon any tenant
. . . in retaliation for" good-faith complaints regarding health, safety, the
warranty of habitability, or the duty to repair or "(a)ctions taken in good faith
. . . to secure or enforce any rights" under to the lease, the warranty of
habitability, or the duty to repair]).
Plaintiffs also properly stated a cause of action for breach of fiduciary duty by
pleading that the board defendants owed them a fiduciary duty, that the board defendants
engaged in misconduct by failing to investigate or address plaintiffs' complaints and
retaliating against them, and that plaintiffs suffered damages by reason of that
misconduct (see Burry v
Madison Park Owner LLC, 84 AD3d 699, 699-700 [1st Dept 2011]).
In support of their summary judgment motion seeking dismissal as against the board
defendants of plaintiffs' fourth cause of action for retaliation and fifth cause of action for
breach of fiduciary duty, the board defendants argued that they sent the notice of default
for reasons related to a refinancing and also sent the notice to a shareholder-tenant other
than plaintiffs. They further claimed that they had taken steps to address plaintiffs'
concerns about water quality in residents' apartments. However, their cross-motion was
supported only by their attorney's affirmation and did not include an affidavit by a person
with personal knowledge (CPLR 3212 [b]). Furthermore, defendants failed to submit any