SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF QUEENS
-------------------------------------------------------------------x
JERRY IANNECE & LYNN IANNECE,
Index No.: 4291/2017
Plaintiffs,

-against-

THE 47-55 39TH PLACE CONDOMINIUM;

RAYMOND CHAN; HARESH KUMAR JOSHI;
NEAL MILANO; DASTAGIR HOSSAIN; and
SAMIR JOSHI,

Defendants.
-------------------------------------------------------------------x

DEFENDANTS MEMORANDUM IN SUPPORT

OF MOTION TO DISMISS

JACOB LAUFER, P.C.

65 Broadway, Suite 1005
New York, NY 10006
Tel. (212) 422-8500
Attorneys for Defendants
 Table of Contents

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

POINT I

This Action Should Be Dismissed as Against the

Individual Board Members Because They Were
Not Properly Served under CPLR 3211(a)(8)
and CPLR 308 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

The Legal Standard for a Motion to Dismiss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

POINT II

The Complaint Should be Dismissed as

Against the Individual Board Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

A. The Complaint Does Not Allege that the Individual

Defendants Committed Separate Tortious Acts;
There is No Basis for Personal Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

B. The Condominium's By-Laws Bar Claims Against

the Individual Defendants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

POINT III

The Condominium's By-Laws Require that This Dispute

Be Arbitrated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

POINT IV

Plaintiffs' Causes of Action Should be Dismissed Under

the Business Judgment Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

POINT V

Plaintiffs Failed to Plead Their Claims with

Sufficient Particularity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
POINT VI

Certain Causes of Action Should be Dismissed

as Duplicative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
 Table of Authorities

Cases

Abajian v. St. Francis Hosp.,

42 A.D.3d 554 (2d Dept. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Acevedo v. Town 'N Country Condominium, Section I, Bd. of Managers,

51 A.D.3d 603 (2d Dept. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Annis v. Long,
298 A.D.2d 340 (2d Dept. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Barnes v. City of New York,

70 A.D.2d 580 (2d Dept. 1979), affd, 51 N.Y.2d 906 (1980) . . . . . . . . . . . . . . . . . . . . . 5

Ben-Zvi v. Kronish Lieb Weiner & Hellman LLP,

278 A.D.2d 167 (1st Dept. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Biondi v. Beekman Hill House Apt. Corp.,

257 A.D.2d 76 (1st Dept. 1999), affd, 94 N.Y.2d 659 (2000) . . . . . . . . . . . . . . . . . . . . 10

Board of Managers of the 200 W. 109 Condo. v. Baker,

244 A.D.2d 229 (1st Dept. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18-19

Brown v. State Farm Ins. Co.,

237 A.D.2d 476 (2d Dept. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Busier v. Corbett,
259 A.D.2d 13 (4th Dept. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-7

Caldwell v. Sara,
2003 WL 182937 (S.D.N.Y. Jan. 28, 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Cora v. Spanish Naturopath Society, Inc.,

168 A.D.2d 535 (2d Dept. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20-21

County of Nassau v. Letosky,

34 A.D.3d 414 (2d Dept. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-6,8

County of Nassau v. Long,

35 A.D.3d 787 (2d Dept. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,8

County of Nassau v. Yohannan,

34 A.D.3d 620 (2d Dept. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-7
Earle v. Valente,
302 A.D.2d 353 (2d Dept. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Estate of Waterman v. Jones,

46 A.D.3d 63 (2d Dept. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,7

Eimer v. Bd. of Managers of 5316 14th Ave. Condominium,

24 Misc.3d 1232(A) (S.Ct. Kings Co. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Faberge v. DiPino,
109 A.D.2d 235 (1st Dept. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Feinstein v. Bergner,
48 N.Y.2d 234 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Foy v. 1120 Ave. of Ams. Assocs.,

223 A.D.2d 232 (2d Dept. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Friedman v. Anderson,
23 A.D.3d 163 (1st Dept. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Helmer v. Comito,
61 A.D.3d 635 (2d Dept. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-17

Higgins v. New York Stock Exch., Inc.,

10 Misc.3d 257 (S.Ct. N.Y. Co. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17-18

Hylan Electrical Contracting, Inc. v. MasTec North America, Inc.,

74 A.D.2d 1148 (2d Dept. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Kaminsky v. FSP Inc.,

5 A.D.3d 251 (1st Dept. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Kaszovitz v. Weiszman,
110 A.D.2d 117 (2d Dept. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Kurlander v. A Big Stam, Corp.,

267 A.D.2d 209 (2d Dept. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-7

Leon v. Martinez,
84 N.Y.2d 83 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Macchia v. Russo,
67 N.Y.2d 592 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Markoff v. South Nassau Cmty Hosp.,
61 N.Y.2d 283 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Matter of Levandusky v. One Fifth Avenue Apt. Corp.,

75 N.Y.2d 530 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

McDonald v. Ames Supply Co.,

22 N.Y.2d 111 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Meadow Lane Equities Corp. v. Hill,

63 A.D.3d 699 (2d Dept. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Megaris Furs v. Gimbel Bros.,

172 A.D.2d 209 (1st Dept. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20-21

Murphy v. State,
14 A.D.3d 127 (2d Dept. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Newman v. 911 Alwyn Owners Corp.,

47 Misc.3d 1213(A) (S.Ct. N.Y.Co. 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

OConnell v. Post,
27 A.D.3d 630 (2d Dept. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Olszewski v. Cannon Point Assn, Inc.,

148 A.D.3d 1306 (3d Dept. 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Persaud v. Teaneck Nursing Ctr., Inc.,

290 A.D.2d 350 (1st Dept. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Pollak v. Moore,
85 A.D.3d 578 (1st Dept. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Sanders v. Elie,
29 A.D.3d 773 (2d Dept. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-7

Tiffany at Westbury Development v. Marelli Development Corp.,

40 A.D.3d 1073 (2d Dept. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Veritas Capital Mgmt. L.L.C. v. Campbell,

22 Misc. 3d 1107(A) (S.Ct. N.Y. Co. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22-23

Vought v. Teachers College, Columbia University,

127 A.D.2d 654 (2d Dept. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Zanett-Lombardier,
29 A.D.3d 495 (1st Dept. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

107 Realty Corp. v. National Petroleum U.S.A., Ltd.,

181 A.D.2d 817 (2d Dept. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20-21

40-50 Brighton First Rd. Apartments Corp. v. Kosolapov,

39 Misc.3d 27 (App. Term 2d Dept. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-17

Statutes

CPLR 308 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . supra

CPLR 3016 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 20-21

CPLR 3211 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . supra

Real Property Law 339 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,18

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
---------------------------------------------------------------x
JERRY IANNECE & LYNN IANNECE.,

Plaintiffs,

- against -

THE 47-55 39TH PLACE CONDOMINIUM; Index No. 4291/2017

RAYMOND CHAN; HARESH KUMAR JOSHI;
NEAL MILANO; DASTAGIR HOSSAIN; and
SAMIR JOSHI,

Defendants.
---------------------------------------------------------------x

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS

MOTION TO DISMISS

INTRODUCTION

This memorandum of law is respectfully submitted by Defendants The 47-55 39th Place

Condominium (the Condominium), and individual board members Raymond Chan (Chan),

Haresh Kumar Joshi (H. Joshi), Neal Milano (Milano), Dastagir Hossain (Hossain), and

Samir Joshi (S. Joshi) (collectively, the Defendants) in support of their motion to dismiss,

pursuant to CPLR 3211.

BACKGROUND

The Condominium established governing by-laws (the By-Laws) in 1985. (By-Laws,

Exhibit (Ex.) C to the Affirmation of Neal Milano (Milano Aff.)). The Board of Managers

(BOM) was established as the governing body of the Condominium and members of the BOM

are elected to their positions by unit owners at the Condominiums annual Unit Holder meetings.

(Id.). The BOM meets regularly to discuss matters relevant to management of the Condominium,

1
to update the members on regular activity and any potential issues that the Condominium may

have, and to consider solutions. (Milano Aff. 6-7). The BOM acts in furtherance of the

Condominiums interests. (Id., 7). The BOM votes on each decision and takes action only upon

a majority vote. (Id.). Defendant Milano became a member of the BOM in 2012. (Id., 5).

The Condominium comprises 47 individually owned units, and 1 additional unit allocated

for use by the building superintendent. (Id., 30).

The only complainants are Plaintiffs Jerry Iannece and Lynn Iannece who purchased two

apartments in the Condominium, Units 1D and 4B (the Apartments) in 2008 and 2014

respectively. (Ex. A, Complaint 2). Plaintiffs are not residents at the Condominium, and assert

that they made the purchases for investment purposes. (Id.).

The Plaintiffs are dissatisfied with the manner in which the BOM has run the

Condominiums activities. But their remedy is to influence the decisions of the BOM, rather than

to complain in this litigation. In fact, Plaintiff Jerry Iannece ran as a candidate for membership in

the BOM in 2014, and lost. (Ex. L, November 25, 2014 Unit Owners Meeting Minutes).

PROCEDURAL HISTORY

The summons and complaint were filed on April 24, 2017. The Condominium was served

by service upon the Secretary of State on or about May 10, 2017. However, it appears that

service upon the individual defendants was not properly effected.

Defendant Chan moved out of the Condominium building in February 2017. (Chan Aff.

2). No affidavit of service upon Chan was found in the Courts file. Defendant Samir Joshi

moved out of the Condominium building nearly two years ago in June 2015. (S. Joshi Aff. 2).

Plaintiffs, who are unit owners of the Condominium, would with reasonable diligence have been

2
aware that neither of those individuals lived in the building during the time of service.

Yet, despite Samir Joshi leaving the building nearly two years prior to commencement of

the action, the affidavit of service indicates that service was merely attempted at the place he

lived two years ago. (Both Raymond Chan and Samir Joshi resigned as board members upon

their respective moves. (See Chan Aff. 5; S. Joshi Aff. 6.))

As shown below, the plaintiffs process server merely made a cursory attempt at proper

service, and improperly promptly defaulted to purported service under CPLR 308(4). And the

individuals did not receive a copy via mailing. (Chan Aff. 4; S. Joshi Aff. 4; H.K. Joshi Aff.

4; Hossain Aff. 3; Milano Aff. 3). The failure to exercise due diligence (or send a mailing)

renders the service of process upon the individual defendants improper.

ARGUMENT

POINT I

This Action Should Be Dismissed as Against the Individual Board Members Because
They Were Not Properly Served under CPLR 3211(a)(8) and CPLR 308

This action should be dismissed as against the Individual Board Members because

Plaintiffs failed to properly serve these defendants as required by CPLR 308. Therefore, this

Court lacks personal jurisdiction over them.

It is well settled that the plaintiff has the burden of proving, by a preponderance of the

credible evidence, that service was properly made . . . Persaud v. Teaneck Nursing Ctr., Inc.,

290 A.D.2d 350, 351 (1st Dept. 2002) (citation omitted). Here, Plaintiffs have not properly

served the Individual Board Members.

3
 Service [of process] is only effective . . . when it is made pursuant to the appropriate

method authorized by the CPLR. Foy v. 1120 Ave. of Ams. Assocs., 223 A.D.2d 232, 234 (2d

Dept. 1996), citing Markoff v. South Nassau Cmty Hosp., 61 N.Y.2d 283, 288 (1984); Feinstein

v. Bergner, 48 N.Y.2d 234, 241 (1979).

Service of process must be made in strict compliance with statutory methods for

effecting personal service upon a natural person pursuant to CPLR 308. Estate of Waterman v.

Jones, 46 A.D.3d 63, 65 (2d Dept. 2007) (citations omitted & emphasis added). To sustain [an

improper] service would encourage carelessness, or worse, thus increasing the risk of default by

parties who, in fact, fail to receive the summons. McDonald v. Ames Supply Co., 22 N.Y.2d

111, 116 (1968).

A finding of jurisdiction without proper service, would negate the statutory procedure

for dismissing the action for lack of jurisdiction. See id., at 115; accord Macchia v. Russo, 67

N.Y.2d 592, 595 (1986) (In a challenge to service of process, the fact that a defendant has

received prompt notice of the action is of no moment. Notice received by means other than those

authorized by statute does not bring a defendant within the jurisdiction of the court.) (internal

citations omitted).

Nail and mail or affix and mail service pursuant to CPLR 308 (4) may be made

only when service under CPLR 308(1) and (2) cannot be made with due diligence. CPLR

308(4). Due diligence is the diligence reasonably expected from, and ordinarily exercised by a

person who seeks to satisfy a legal requirement or to discharge an obligation. See Blacks Law

Dictionary (8th ed. 2004), p. 488. Strict adherence to the statute is a jurisdictional requirement,

irrespective of whether the defendant has notice or otherwise receives the summons.

4
 Actual notice does not cure a defect in service or confer personal jurisdiction on the

court. Kaszovitz v. Weiszman, 110 A.D.2d 117 (2d Dept. 1985). In Kaszovitz, the Court found

the affidavit of service defective on its face as it showed three attempts of service at three

different times on weekdays during normal working hours or times when it could be reasonably

concluded that one was in transit to or from the place of employment. The Court held that a

defendant may have actually received a copy of the summons and complaint, was irrelevant.

Id., at 120.

[T]he due diligence requirement refers to the quality of the efforts made to effect

personal service, and certainly not to their quantity or frequency. Barnes v. City of New York, 70

A.D.2d 580 (2d Dept. 1979), affd, 51 N.Y.2d 906 (1980). In County of Nassau v. Letosky, 34

A.D.3d 414, 415 (2d Dept. 2006), the Court required that [t]he due diligence requirement of

CPLR 308(4) must be strictly observed, given the reduced likelihood that a summons served

pursuant to that section will be received. (emphasis added & citation omitted). The Court in

Letosky held:

Contrary to the plaintiffs contention, the Supreme Court properly concluded that
the attempts to serve the defendant Tina M. Letosky at her residence did not
satisfy the due diligence requirement. Two of the three attempts at service were
made on weekdays during hours when it reasonably could have been expected
that Letosky was either working or in transit to work (see OConnell v. Post,
supra; Earle v. Valente, 302 A.D.2d 353, 754 N.Y.S.2d 364; Annis v. Long, 298
A.D.2d 340, 751 N.Y.S.2d 370). Moreover, there is no indication that the process
server made any attempt to locate Letoskys business address in order to
effectuate service at that location (see Sanders v. Elie, 29 A.D.3d 773, 816
N.Y.S.2d 509; O'Connell v. Post, supra; Gurevitch v. Goodman, supra; Moran v.
Harting, 212 A.D.2d 517, 622 N.Y.S.2d 121). Although the plaintiff notes that
Letosky did not deny receipt of the summons and complaint affixed to the door of
her residence, when the requirements for service of process have not been met, it
is irrelevant that defendant may have actually received the documents Raschel v.
Rish, 69 N.Y.2d 694, 697, 512 N.Y.S.2d 22, 504 N.E.2d 389; see Hillary v.

5
 Grace, 213 A.D.2d 450, 623 N.Y.S.2d 620; Dewey v. Hillcrest Gen. Hosp., 201
A.D.2d 609, 607 N.Y.S.2d 967). Accordingly, Letoskys motion to dismiss the
complaint insofar as asserted against her for lack of personal jurisdiction was
properly granted.

34 A.D.3d at 415 (emphasis added).

In County of Nassau v. Long, 35 A.D.3d 787, 787-88 (2d Dept. 2006), the Second

Department again emphasized that even a series of attempts to make service under CPLR

308(1) & (2) will not suffice to employ nail and mail service of process to effectuate

jurisdiction over a defendant. The Court explained:

Contrary to the plaintiffs contention, the Supreme Court properly concluded that
the attempts to serve the defendant Patrick Long at his residence did not satisfy
the due diligence requirement for so-called nail and mail service under CPLR
308(4). Here, the attempts preceding service were made on August 18, 2005, a
Thursday, at 7:00 P.M., August 19, 2005, at 3:45 P.M., and August 23, 2005, a
Tuesday, at 7:44 P.M. These attempts were made on weekdays during hours when
it reasonably could have been expected that Long was either working or in transit
to or from work (see County of Nassau v. Letosky, 34 A.D.3d 414, 824 N.Y.S.2d
153; OConnell v. Post, 27 A.D.3d 630, 631, 811 N.Y.S.2d 441). Moreover, there
is no indication that the process server made any attempt to locate Longs
business address or to effectuate personal service thereat (see County of Nassau v.
Letosky, supra; Sanders v. Elie, 29 A.D.3d 773, 774, 816 N.Y.S.2d 509).
Accordingly, the Supreme Court properly granted that branch of Longs motion
which was to dismiss the complaint insofar as asserted against him for lack of
personal jurisdiction.

Long, 35 A.D.3d at 787-788; see County of Nassau v. Yohannan, 34 A.D.3d 620, 620-21 (2d

Dept. 2006); Earle v. Valente, 302 A.D.2d 353 (2d Dept. 2003); Annis v. Long, 298 A.D.2d 340,

341 (2d Dept. 2002).

For the purpose of satisfying the due diligence requirement of CPLR 308(4), it must

be shown that the process server made genuine inquiries about the defendants whereabouts and

place of employment. See Sanders v. Elie, 29 A.D.3d 773, 774 (2d Dept. 2006); Kurlander v. A

6
Big Stam, Corp., 267 A.D.2d 209 (2d Dept. 1999); Busier v. Corbett, 259 A.D.2d 13, 15 (4th

Dept. 1999). An attempt at a service when a defendant would not be expected to be at home, is a

prima facie failure to meet the minimum requirements of due process, absent a showing that

the plaintiffs process server ever made any genuine inquiries about the defendant's

whereabouts and place of employment, Estate of Waterman v. Jones, 46 A.D.3d 63, 66 (2d

Dept. 2007), so that an attempt at service could be made there.

In OConnell v. Post, 27 A.D.3d 630 (2d Dept. 2006), the court reviewed the process

servers affidavit of service to determine if due diligence had been made. The process server

made one attempt of service at the defendant's home address on a weekday at 6:16 p.m. and then

at the defendant's vacation home in East Hampton on a weekday at 7:45 a.m. The next day, also

a weekday, service was effectuated by nail and mail service at the defendants vacation home.

The court held that the [p]laintiff failed to satisfy due diligence in not making an effort to

determine the defendant's business address.

In Sanders v. Elie, 29 A.D.3d 773 (2d Dept. 2006), the court found an absence of due

diligence where the process server made no attempt to locate the defendants business address or

attempt service at the business address. Thereafter, in County of Nassau v. Yohannan, 34 A.D.3d

620 (2d Dept. 2006), the court noted that the process server made two attempts at service, both

on weekdays during hours when it could be reasonably be expected that the defendants were

working or in transit to or from work. It rejected jurisdiction, noting that there is nothing in the

record to indicate that the process server made any attempt to inquire of the neighbors as to the

defendants working habits or to ascertain the defendants respective business addresses for the

purpose of effectuating personal service at those locations pursuant to CPLR 308(1) or (2).

7
 The Second Department, in Abajian v. St. Francis Hosp., 42 A.D.3d 554 (2d Dept. 2007),

reversed the denial of a motion to dismiss for improper service of process, holding that the

attempts to serve [the defendant] pursuant to CPLR 308 (1) and 308 (2) prior to the employment

of the affix and mail method of service did not satisfy the due diligence requirement set forth

in CPLR 308 (4) (see County of Nassau v. Long, 35 A.D.3d 787, 826 N.Y.S.2d 739 (2nd Dept.

2006); County of Nassau v. Letosky, 34 A.D.3d 414, 824 N.Y.S.2d 153 (2nd Dept. 2006)).

Here, Plaintiffs failed to demonstrate due diligence to effectuate personal service or the

need to resort to affix and mail. Virtually any due diligence at all, such as asking a

resident/neighbor Does Samir Joshi live here? or Where does Samir Joshi work? or asking

the same questions about Raymond Chan, would have yielded that they no longer live at that

location. Instead, the affidavits of service yield that the process server spent under a total of 25

minutes (spread over three days) purporting to serve process on five individuals.

With regard to Defendant Chan, no affidavit of service is on file, and if the process server

made any effort to serve him, service would in all events be defective because no affidavit of

service was filed within the 20 days required by CPLR 308. Chan had sold his unit and moved

from the building months earlier, changing his home address.

Similarly, Defendant S. Joshi sold his unit and moved from the building nearly two years

earlier, changing his home address. These defendants moved out of a building in which both

Plaintiffs owned two apartments and to which they had full access; they knew or should have

known (with any diligence) that these individuals did not live in the building at the time of

service of process.

8
 According to the filed affidavits of service (Ex. B), the process server went to the

Condominium building for seven minutes on Wednesday, April 26, 2017, and reported that:

at 1:43 p.m., there was no answer at apartment 6A, the apartment that Samir
Joshi moved away from two years earlier; and at a time when it could be
reasonably be expected that he was working or in transit to or from work.

at 1:45 p.m., there was no answer at apartment 6H, the apartment of Dastagir
Hossain, at a time when it could be reasonably be expected that he was working
or in transit to or from work.

at 1:48 p.m., she left the summons and complaint with an unidentified co-
tenant at apartment 4C, the apartment of Haresh Kumar Joshi.

at 1:50 p.m., there was no answer at apartment 3B, the apartment of Neal
Milano, at a time when it could be reasonably be expected that he was working or
in transit to or from work.

The affidavits of service report that the process server returned to the building for 8

minutes on Friday, April 29, 2017:

at 6:01 p.m., there was no answer at apartment 6A, the apartment that Samir
Joshi moved away from two years earlier; and at a time when it could be
reasonably be expected that he was working or in transit to or from work.

at 6:03 p.m., there was no answer at apartment 6H, the apartment of Dastagir
Hossain, at a time when it could be reasonably be expected that he was working
or in transit to or from work.

at 6:09 p.m., there was no answer at apartment 3B, the apartment of Neal
Milano, at a time when it could be reasonably be expected that he was working or
in transit to or from work.

With this fig-leaf of due diligence, the process server returned to the building on

Saturday, April 29, 2017, and purported to accomplish nail and mail service within seven

minutes on Samir Joshi (at 10:30 a.m.), Dastagir Hossain (at 10:32 a.m.), and Neal Milano (at

10:37 a.m.).

9
 Further, in the absence personal in-hand service, a mailing was required to be sent to each

of them to complete service, Yet, Chan, S. Joshi, Milano, Hossain, and H.K. Joshi (the

Individual Board Members) attest to the failure to receive such a mailing. (Chan Aff. 4; S.

Joshi Aff. 4; H.K. Joshi Aff. 4; Hossain Aff. 3; Milano Aff. 3).

Thus, service was defective for all the individual defendants. We therefore respectfully

request that the Complaint be dismissed as to the Individual Board Members.

A. The Legal Standard for a Motion to Dismiss

In deciding a motion under CPLR 3211(a)(7), the court must liberally construe the

pleading, accept the alleged facts as true, accord the non-moving party the benefit of every

possible favorable inference, and determine only whether the alleged facts fit within any

cognizable legal theory. Leon v. Martinez, 84 N.Y.2d 83, 87 (1984). However, where the legal

conclusions and factual allegations are flatly contradicted by documentary evidence, they are not

presumed to be true or accorded every favorable inference. Biondi v. Beekman Hill House Apt.

Corp., 257 A.D.2d 76, 81 (1st Dept. 1999), affd, 94 N.Y.2d 659 (2000).

POINT II

The Complaint Should be Dismissed as

Against the Individual Board Members

A. The Complaint Does Not Allege that the Individual Defendants Committed
Separate Tortious Acts; There is No Basis for Personal Liability

The Complaint contains no allegations of actions taken by Individual Board Members

that were not in their capacity of BOM membership. The individual BOM members are not

personally liable for the actions conducted on behalf of the Condominium, and the Complaint

should be dismissed against them.

10
 Board members are not individually liable for the actions of the board absent the

allegation that they committed separate tortious acts. Meadow Lane Equities Corp. v. Hill, 63

A.D.3d 699, 700 (2d Dept. 2009). In Meadow Lane, the Second Department dismissed the causes

of action against individual members of a cooperative board, including for breach of a fiduciary

duty, because the plaintiff failed to plead that a board member acted tortiously other than in her

capacity as a member of the Board. Id. (citations omitted).1

Here, each of Plaintiffs claims are against the Condominium (inter alia) and its actions

and by extension against the individual members of the BOM (except for the 21st cause of action,

which references one individual Defendant). As these are claims against the Condominium and

do not involve separate tortious acts by the individual defendants, the Individual Board Members

are not subject to personal liability, and the Complaint should be dismissed as against them.

B. The Condominiums By-Laws Bar Claims Against the Individual

Defendants.

Moreover, as an independent ground to dismiss this case as against the individual BOM

members, the Condominiums By-Laws provide, that the members of the Condominium Board

shall have no liability to the Unit Owners for errors of judgment, negligence, or otherwise,

except that each member of the Condominium Board shall be liable thereto for his or her own

bad faith or willful misconduct. (Ex. C, By-Laws 2.20). A similar provision of the By-Laws

provides that the officers of the Condominium shall have no liability to the Unit Owners for

1
See also, Caldwell v. Sara, 2003 WL 182937, at *2 (S.D.N.Y. Jan. 28, 2003), where the
court granted a motion to dismiss where the plaintiff pretextually (to create federal diversity
jurisdiction) brought the action against individual members of a condominiums board for
actions of the board.
11
errors of judgment, negligence, or otherwise, except that each officer of the Condominium Board

shall be liable thereto for his or her own bad faith or willful misconduct. (Id., 3.10(A)).

The governing documents at issue here, i.e., each condominium associations bylaws

and declarations, are contracts, and our review and analysis thereof is governed by principles of

contract interpretation that are both familiar and well-settled. As a starting point, [i]t is

axiomatic that a contract is to be construed in accordance with the parties' intent, which is

generally discerned from the four corners of the document itself. Olszewski v. Cannon Point

Assn, Inc., 148 A.D.3d 1306, 130809 (3d Dept. 2017).

These limitation of liability provisions apply here, and furnish an independent ground for

dismissal of this case against the individual defendants.

POINT III

The Condominiums By-Laws Require that This Dispute Be Arbitrated

In Faberge v. DiPino, 109 A.D.2d 235 (1st Dept. 1985) the Court held that a party who

was bound by arbitration was barred from seeking or obtaining any remedy other than in aid of

arbitration. Here, Plaintiffs who are purchasers of units in the Condominium and who have

agreed to abide by the terms and conditions in the By-Laws. See Murphy v. State, 14 A.D.3d

127, 133 (2d Dept. 2004).

Here, in a clear-cut a dispute wherein Plaintiffs make allegations against the BOM, the

Condominium By-Laws require the dispute be resolved by arbitration; Any matter required or

permitted to be determined by arbitration pursuant to the terms of the Condominium Documents

shall be submitted for resolution by a single arbitrator (Ex. C, By-Laws 10.1).

Thus, to the extent that this matter survives the other bases for dismissal, the matter

12
should be submitted to arbitration.

POINT IV

Plaintiffs Causes of Action Should be

Dismissed Under the Business Judgment Rule

The prolix complaint alleges a welter of causes of action that lack merit. Indeed, many of

them are patently frivolous. The context of the complaint is important.

The first notable point is that the Condominium comprises 47 individually owned units,

and one Condominium-owned unit that is allocated to the superintendent. (Milano Aff. 30).

The Plaintiffs are the owners of two of the 47 units, which they purchased by permission

of the BOM, which allowed them to purchase their units for investment purposes; both the

Declaration and the Condominiums By-Laws restrict use of the units to residence by their

owners. (Ex. C, Declaration, Article 9; By-Laws, 5.7(B)).

Application of normal principles of corporate governance and democracy dictate that if

the plaintiffs object to holiday decorations and festivity, and the buildings decor (the 11th and

12th Claims), their recourse is not judicial intervention, but rather to vote for a different Board of

Managers (BOM). In fact, the plaintiffs come to court because Plaintiff Jerry Iannece ran for

the BOM but lost the election. (Ex. L). It is thus ironic that the Plaintiffs allege that they were

barred from running for the BOM (6th Claim).

Given the Plaintiffs investor status, it is also ironic that they claim that it is inappropriate

for the BOM to seek information from prospective purchasers, who would become fellow unit

owners of the Condominium (7th Claim); and challenge the BOMs votes that govern lease

13
renewals for the collective benefit of the Condominium (8th and 9th Claims) and to impose a $200

monthly fee on units that they are permitted by the BOM to rent out (10th Claim).

Many of the Plaintiffs claims pertain to interview, application, and management fees that

are authorized for the collective benefit and upkeep of the Condominium and its unit owners, that

are universally applicable to all unit owners, and are not alleged to be discriminatory or specific

to the Plaintiffs. (Claims 1-5).

Other claims challenge fines lawfully and properly imposed for violations of the By-

Laws and House Rules (13th and 14th Claims); a claim for $250,000 in alleged damages because

of a shed that was required by the Condominium to store its snow removal and other gas-

powered equipment [that may not lawfully be stored indoors] (16th Claim); and that alleges that

defendants disseminated libelous information about a tenant, without the Plaintiffs setting out a

viable allegation of defamation (15th Claim). CPLR 3016(a) (In an action for libel or slander,

the particular words complained of shall be set forth in the complaint . . .)

The By-Laws permit fees such as are raised in Claims 1-5. (Ex. C, By-Laws 2.4A,

2.4A(xxiii); see also, 2.4A(xvii) (to levy and collect fines for violations of the Rules and

Regulations adopted or amended by the BOM)). According to the BOM Minutes, the BOM

voted to approve: a $750 interview and application fee for renters on November 11, 2012 (Ex.

D); an increase of the rental application fee to $2000 on December 14, 2014 (Ex. E); an increase

in the rental application fee to $2500 on June 7, 2015 (Ex. J); a $100 per month surcharge for

owners renting out apartments on July 8, 2016 (Ex. G); an increase to a $200 per month

surcharge for owners renting out apartments on January 9, 2017 (Ex. H); a $2500 service fee for

sellers with an $850 buyers application fee, a $1500 condominium management fee, a

14
refundable $1000 damage deposit, and 3 months common charges in advance for buyers on

October 27, 2014 (Ex. I); and an increase to a $1500 buyers application fee and $5000 sellers

processing fee on December 14, 2014 (Ex. E). The House Rules from January 20, 2017

mandated a $500 fine for certain improper removal of garbage (Ex. N) and the Notice to the

tenants of 1D documented the improper removal of garbage (Ex. M).

These series of minutes reflect the discussions and votes the BOM conducted with regard

to the fines and fees referred to in Claims 1-5, 10, 13-14. These minutes demonstrate that (a) the

BOM considered the issues involved with regard to these fees, (b) the BOM, whose duty is to the

Condominium voted in favor of these fees, and (c) the unit owners continued to vote for the

BOM despite the existence of these fees and the growth of these fees over the years, which

shows unit holder agreement with the need for these fees.

These fees (and the additional restriction on rental tenants and unit sales referred to in

Claims 7-9) were and are understandable for multiple reasons beyond merely raising funds for

the common good of the Condominium and its unit owners. They include the process for

approving tenants, and increased Condominium expenses referable to non-owner tenants who

have less stake in the common good, such as increased clean-up and the separation of

recyclables. The disposal of the X-mas tree referenced in Claim 14 is merely such an example.

In Claims 7-9, Plaintiffs object to the BOMs attempts to manage who moves into the

building based on standard criteria and the ability to safely and orderly maintain the premises

without requiring increased maintenance costs, sanitation costs, and security costs. In Claim 12,

Plaintiffs object to standard holiday decorations and holiday music. In Claim 16, Plaintiffs object

to a shed in the rear yard, with no recognition that this is an unresolved matter, and that indoor

15
storage of gas-powered tools such as the leaf blower and snow blower bears risk of danger that

preclude their lawful indoor storage, such as in the basement. (See Milano Aff. 22).

Similarly, on June 7, 2011, the BOM voted to commission a mural of American history

for the common area walls when the income became available. (Ex. F). This reflects discussion

and voting by the BOM with regard to Claim 11.

Claim 6 attacks the BOM elections process; on November 25, 2014, the unit owners held

an annual meeting and chose not to elect Plaintiff Jerry Iannece to the BOM. (Ex. L). On April

11, 2015, the BOM, considering the inherent stake of residents in the Condominiums well-

being, reasonably instituted a policy that board members must live in the Condominium for 1

year prior to serving on the BOM. (Ex. K).

Rounding out their scattershot complaints, the plaintiffs broadly allege harassment (17th

and 20th Claims); breach of contract (18th Claim); breach of fiduciary duty (19th and 21st Claims);

and a legally unsustainable claim for legal fees (23rd Claim). Finally, they allege that a claim by

the Condominium against defendant Milano was inappropriately settled (22nd Claim). This is an

inappropriately raised derivative claim. Moreover, the issue was raised and resolved by the BOM

in detail in a BOM meeting on August 21, 2011. (Ex. O).

As shown by documentary evidence, the duly elected members of the BOM have acted

lawfully, and with the consent of the unit owners who elected them.

Where a unit owner challenges an action by a condominium Board of Managers, courts

apply the business judgment rule. . . . Under the business judgment rule, the courts inquiry is

limited to whether the board acted within the scope of its authority under the bylaws (a necessary

threshold inquiry) and whether the action was taken in good faith to further a legitimate interest

16
of the condominium. Absent a showing of fraud, self-dealing or unconscionability, the court's

inquiry is so limited and it will not inquire as to the wisdom or soundness of the business

decision. Helmer v. Comito, 61 A.D.3d 635, 636 (2d Dept. 2009) (citations and internal quotes

omitted); accord, 40-50 Brighton First Rd. Apartments Corp. v. Kosolapov, 39 Misc.3d 27, 28

29 (App. Term 2d Dept. 2013). Thus, merely making an unwise, unreasonable, or inexpedient

decision does not warrant judicial review of the boards decision. Matter of Levandusky v. One

Fifth Avenue Apt. Corp., 75 N.Y.2d 530, 538 (1990).

The business judgment rule, which applies to condominium boards, prohibits judicial

inquiry into the actions of the board as long as the board acts for the purpose of the

condominium, within its authority and in good faith. Acevedo v. Town 'N Country

Condominium, Section I, Bd. of Managers, 51 A.D.3d 603, 604 (2d Dept. 2008) (citations

omitted).

In the context of the business judgment rule, a complaint must contain allegations

sufficient to demonstrate that directors did not act in good faith or were otherwise interested . . .

Higgins v. New York Stock Exch., Inc., 10 Misc.3d 257, 282 (S.Ct. N.Y. Co. 2005). Absent such

factual allegations, that actions were not taken in good faith and in the exercise of honest

judgment in the lawful and legitimate furtherance of corporate purposes . . . further judicial

inquiry is barred by the business judgment rule, and the plaintiffs claim for breach of fiduciary

duty must be dismissed pursuant to CPLR 3211(a)(7). Newman v. 911 Alwyn Owners Corp., 47

Misc.3d 1213(A) at *4 (S.Ct. N.Y.Co. 2015) (citation & internal quotation marks omitted).

Apart from broad conclusory allegations, the complaint is bereft of any detail to support

the plaintiffs claims that they were singled out, or discriminated against in any manner, or that

17
the BOM did not act in good faith or were otherwise interested . . . Higgins v. New York Stock

Exch., Inc., supra.

The management and application fees imposed are fully authorized for the well-being of

the Condominium; the obligations, duties and powers of the duly elected BOM, in order to

maintain the well-being of the enterprise are broad. The by-laws empower the BOM with all of

the powers and duties necessary for, or incidental to, the administration of the affairs of the

Condominium other than those prohibited to it by Law, the Condominium Declaration or the

by-laws. (Ex. C, By-Laws section 2.4(A)).

These require the BOM to maintain the building and its financial condition in good and

proper order; entitle the BOM to determine the amount and establish the means and methods of

payment of, and to collect, the Common Charges and Special Assessments from the Unit

Owners (id., section 2.4(A)(v)); and to adopt and amend the Rules and Regulations and to levy

and collect fines against Unit Owners for violations of the same. (Id., 2.4(A)(xvii)); Cf. RPL

339-kk (Rents).

Moreover, the BOM is empowered to modify the Rules and Regulations of the

Condominium, subject to being overruled by the unit owners: The Condominium Board shall

have the right to amend, modify, add to or delete any of the Rules and Regulations from time to

time, provided, however, that any such amendment, modification, addition, or deletion may be

overruled by a vote of the Majority of Unit Owners. (Ex. C, By-Laws 5.10).

Notably, a condominium board may, for the maintenance and betterment of the building,

issue fines in accordance with its By-Laws. Bd. of Managers of the 200 W. 109 Condo. v. Baker,

244 A.D.2d 229, 22930 (1st Dept. 1997) (the Court held that the unit owner was required to pay

18
the boards assessed fine for a leak in the unit and dismissed claims including breach of fiduciary

duty against the board for their actions).

Because the BOM acted pursuant to its authority under the Business Judgment Rule the

BOM was correct in assessing and imposing fines for Plaintiffs violations as per the House

Rules and By-Laws that were both in effect at the time of the 2017 fine. (Ex. C, By-Laws, 5.2;

see also, Ex. N, House Rules). It follows that judgment should be granted, dismissing these

causes of action.2

There was no discriminatory practice or arbitrariness here. In fact, BOM members Samir

Joshi and Raymond Chan who thereafter sold their units, paid the requisite application fees.

(Milano Aff. 26, 28).

Thus, the business judgment rule precludes the plaintiffs actions involving raising and

collecting application fees and fines (see Claims 1-5, 10, 13-14), creating or administering By-

Laws and House Rules (see Claims 6-9), actions attempting to improve the building (see Claims

11-12, 14, 16), and generic and conclusory claims of breach of contract and breach of fiduciary

duty (see Claims 18-21), vague and conclusory allegations of harassment (see Claims 15, 17,

2
Each unit owner shall comply strictly with the by-laws and with rules, regulations,
resolutions and decisions adopted pursuant thereto. Failure to comply with any of the same shall
be ground for an action to recover sums due, for damages or injunctive relief or both
maintainable by the board of managers on behalf of the unit owners or, in a proper case, by an
aggrieved unit owner. RPL 339(j). Further, as noted earlier, petitioners agreed in their Deeds
to comply with the ByLaws of the CONDO and RPL 339j requires that [e]ach unit owner
shall comply strictly with the by-laws and with rules, regulations, resolutions and decisions
adopted pursuant thereto. Eimer v. Bd. of Managers of 5316 14th Ave. Condominium, 24
Misc.3d 1232(A) (S.Ct. Kings Co. 2009).

19
22), and demands for extraneous relief such as an accounting, punitive damages, or legal fees

(see Claims 20-23).

It follows that the complaint should be dismissed.

POINT V

Plaintiffs Failed to Plead Their Claims with Sufficient Particularity

Claims 2, 6-10, 12, 14-17, 19-23 conclusorily allege self-dealing or bad faith. Alleging

such malintent in a complaint requires a significant level of particularity. Aside from failing to

plead the necessary elements against Defendants, Plaintiffs fail to satisfy the stringent pleading

requirements of CPLR 3016(b). CPLR 3016(b) requires that [w]here a cause of action . . .

[i]s based upon misrepresentation, fraud . . . [or] breach of trust . . . the circumstances

constituting the wrong shall be stated in detail. The failure to comply with the pleading

requirements of CPLR 3016(b) warrants dismissal of the claim. See, e.g., Zanett-Lombardier,

29 A.D.3d 495 (1st Dept. 2006); Ben-Zvi v. Kronish Lieb Weiner & Hellman LLP, 278 A.D.2d

167 (1st Dept. 2000); Brown v. State Farm Ins. Co., 237 A.D.2d 476 (2d Dept. 1997).

Plaintiffs Complaint merely lists some of the bare elements of the bad-faith-based causes

of action without any factual allegations detailing the allegations. Under CPLR 3016(b), the

sparse allegations of the complaint are insufficient, as the pleader must allege facts; a pleading

containing only conclusory allegations is dismissible. See Friedman v. Anderson, 23 A.D.3d 163,

166 (1st Dept. 2005) (fraud claim dismissed because plaintiff failed to plead specific factual

allegations beyond merely reciting the elements of fraud); 107 Realty Corp. v. National

Petroleum U.S.A., Ltd., 181 A.D.2d 817, 818 (2d Dept. 1992) (the allegations are stated in

vague and conclusory terms, and are insufficient to meet the pleading requirements set forth in

20
CPLR 3016(b)); Megaris Furs v. Gimbel Bros., 172 A.D.2d 209 (1st Dept. 1991) (dismissal

warranted when plaintiff fails to plead specific factual allegations for each element of fraud);

Cora v. Spanish Naturopath Society, Inc., 168 A.D.2d 535 (2d Dept. 1990) (fraud claim

dismissed because the pleading did not contain factual assertions from which it may be inferred

that the alleged representations were known by the defendants to be false at the time they were

made).

Even the Plaintiffs claim that a fine was imposed to reduce plaintiffs' profit and was

part of a systematic conscious and intentional effort by defendants to force plaintiffs to sell their

units. (Ex. A, Complaint 127, see also, 218), is contradicted by their allegation that

plaintiffs were approached by several other unit owners who were not happy with the

defendants and their management of the building. (Id., 70; see also, 151, 244). This second

narrative indicates that many unit owners had varying opinions of the BOMs decision, but the

BOM was not vindictive or singling out the Plaintiffs. The Plaintiffs disagreement with the

BOM was actually resolved at an election of the unit owners, an election that the Plaintiffs lost.

(See Ex. L).

The vague conclusory allegations in the 15th Claim allege that the Plaintiffs tenants were

harassed with libelous posts without identifying the alleged defamer(s), the individuals being

defamed, or even the content of the posts, which is patently deficient and makes such a cause of

action impossible to defend.

Notably, the 20th Claim contains no specificity with regard to any intentional infliction or

bad faith treatment.

The bottom line is that when a Complaint attempts to set out claims that require a

21
showing of the defendants malign intent, factual detail is required. It is not enough to

conclusorily allege that defendants acted in breach of a fiduciary duty, or in a fraudulent way.

It follows that the Complaint is deficient and should be dismissed.

POINT VI

Certain Causes of Action Should be Dismissed as Duplicative

The 3rd and 5th Claims demand (inter alia) the return of rental/application fees collected,

which duplicate the 1st, 2nd, and 4th Claims demanding the return of individual rental/application

fees. Similarly, the 17th Claim demands the Defendants refrain from fines, fees, and policies that

deleteriously affect the Plaintiffs, and demands an injunction duplicative of the 3rd and 5th

Claims, along with the 7th through 16th Claims.

It is well-settled that once a contractual relationship was entered into between the

parties, the contract defined the scope of the duties owed to the plaintiff, and, without a special

relationship out of which a separate and distinct legal duty sprang, the plaintiff cannot maintain a

separate tort cause of action. Vought v. Teachers College, Columbia University, 127 A.D.2d

654 (2d Dept. 1987). Therefore, the courts will dismiss tort claims that are merely duplicative of

claims for breach of contract; i.e., when the claim is based on the same underlying facts or where

the damages sought are the same. See, e.g., Tiffany at Westbury Development v. Marelli

Development Corp., 40 A.D.3d 1073 (2d Dept. 2007) (A cause of action alleging fraud does not

lie where the only fraud claim relates to a breach of contract); Pollak v. Moore, 85 A.D.3d 578,

579 (1st Dept. 2011) (Plaintiff's alternative claims sounding in breach of fiduciary duty, fraud,

fraud in the inducement and negligent misrepresentation were duplicative of his breach of

contract claims and, as such, properly dismissed.) (citations omitted); Veritas Capital Mgmt.

22
L.L.C. v. Campbell, 22 Misc. 3d 1107(A) (S.Ct. N.Y. Co. 2008) (Plaintiffs fraudulent

inducement claim, here, simply duplicates and is based on the identical facts as the breach of

contract claims. It alleges no independent facts sufficient to give rise to tort liability.) (internal

citations omitted). Plaintiffs 18th Claim for breach of contract is therefore duplicative of all the

prior causes of action. Accordingly, Plaintiffs prior claims demanding sums (Claims # 1, 2, 3, 4,

5, 10, 15, 16 should be dismissed (or in the alternative, the 18th Claim should be dismissed).

It is also well-settled that a claim for breach of fiduciary duty will not stand when it is

duplicative of a claim for breach of contract. Hylan Electrical Contracting, Inc. v. MasTec North

America, Inc., 74 A.D.2d 1148 (2d Dept. 2010) (dismissing cause of action for breach of

fiduciary duty as duplicative of claim for breach of contract); Kaminsky v. FSP Inc., 5 A.D.3d

251 (1st Dept. 2004).

Thus, the 19th and 21st Claims for breach of fiduciary duty should be dismissed.

23
 CONCLUSION

Wherefore, it is respectfully submitted that Defendants' motion to dismiss, pursuant to

CPLR 3211, dismissing the complaint should be granted, and the Defendants be afforded costs,

attorneys fees, and such other and further relief as the Court may deem just and equitable.

Dated: New York, New York

July 10, 2017
JACOB LAUFER, P.C.

~ ~ {<--<._
Jaco&taufer, Esq. P
Mark Ellis, Esq.
65 Broadway, Suite 1005
New York, New York 10006
(212) 422-8500
Attorneys for Defendants The 47-55 39111 Place
Condominium, Raymond Chan, Haresh Kumar
Joshi, Neal Milano, Dastagir Hossain, and Samir
Joshi

To:
Clerk of the Court

Lynn Calvacca, Esq.

160-05 Horace Harding Expressway
Flushing, New York 11365
(718) 961-5550
Attorney for Plaintiffs

24