Loch Sheldrake Beach and Tennis Inc. v. AkulichLoch Sheldrake Beach and Tennis Inc. v. Akulich
Plaintiff is a domestic business corporation that manages a private, seasonal bungalow community in the Town of Fallsburg, Sullivan County. Defendant is a shareholder of plaintiff and an occupant of one of the bungalows pursuant to a proprietary lease. The lease requires plaintiff’s approval prior to any structural additions or alterations to a bungalow. Defendant, without seeking permission from plaintiff, extended her deck during the community’s off-season. After defendant refused to remove the deck extension, plaintiff commenced this action seeking a declaratory judgment that the deck extension was in violation of plaintiff’s rules and regulations, a permanent injunction directing removal of the extension and counsel fees pursuant to plaintiff’s proprietary lease. Defendant answered and, among other things, set forth counterclaims for discrimination, intentional infliction of emotional distress and defamation.
Following discovery, defendant moved for leave to amend her answer to add breach of fiduciary duty as an additional counterclaim and for permission to join Carol Stock, a shareholder and occupant of one of the bungalows, as a defendant on the counterclaims or, in the alternative, to join Stock as a third-party defendant. Plaintiff cross-moved for summary judgment and dismissal of defendant’s counterclaims. Supreme Court granted defendant’s motion to amend her answer and to serve a third-party complaint on Stock and denied plaintiff’s cross motion without prejudice, concluding that a determination on such cross motion would be premature. Plaintiff appeals.
We agree with plaintiff that Supreme Court erred in granting
Next, Supreme Court should have denied defendant’s motion for leave to serve a third-party complaint on Stock.
Turning to that part of plaintiff’s cross motion seeking summary judgment, a moving party is entitled to summary judgment where there are no triable issues of fact and where that party makes a prima facie showing that it is entitled to a favorable determination as a matter of law (see
In order for plaintiff to succeed on its cause of action for a declaratory judgment and issuance of a permanent injunction to require defendant to remove her deck extension, plaintiff must demonstrate that the deck extension was unauthorized in violation of the parties’ previous agreement, and that the action by plaintiff was authorized, made in good faith and in furtherance of its legitimate interests (see Walden Woods Homeowners’ Assn. v Friedman, 36 AD3d at 692; Matter of Renauto v Board of Directors of Valimar Homeowners Assn., Inc., 23 AD3d 564, 564 [2005]; Hidden Ridge At Kutsher’s Country Club Homeowner’s Assn. v Chasin, 289 AD2d 652, 654 [2001]; see generally 40 W. 67th St. v Pullman, 100 NY2d at 155-157). To that end, plaintiff submitted, among other things, its proprietary lease, which states that a shareholder “shall not, without the written consent of [plaintiff], make any structural additions to or alterations in the premises.” Additionally submitted were excerpts from plaintiff’s shareholder’s handbook, which refers to deck alterations as “large scale”
As plaintiff established its entitlement to summary judgment, the burden then shifted to defendant to submit evidence in admissible form showing the existence of any material issue of fact (see Forest Hills Gardens Corp. v Evan, 12 AD3d 563, 564 [2004]; see generally O’Brien v Couch, 124 AD3d 975, 976 [2015]). This defendant failed to do. Although defendant argued that plaintiff was not entitled to rely on the business judgment rule because it has treated her unfairly, she has failed to demonstrate that plaintiff has pursued this action in bad faith, and it is undisputed that plaintiff failed to remove the deck extension after a formal request was made for its removal. Defendant has also failed to offer any evidence of plaintiff’s ulterior motivation for instituting legal action against her or evidence that plaintiff has failed to take adverse action against other shareholders in similar circumstances (see Bregman v 111 Tenants Corp., 97 AD3d 75, 83-84 [2012]; Louis & Anne Abrons Found. v 29 E. 64th St. Corp., 297 AD2d 258, 260-261 [2002]; Board of Mgrs. of Manhattan Val. Townhouses v Murovich, 273 AD2d 11, 11 [2000]; Cooper v 6 W. 20th St. Tenants Corp., 258 AD2d 362, 362 [1999]). Accordingly, plaintiff’s cross motion for summary judgment with respect to its cause of action for a declaratory judgment and the issuance of a permanent injunction should have been granted.
As to that part of plaintiff’s cross motion seeking dismissal of defendant’s counterclaims, we find that the counterclaims fail to state a cause of action, are not supported by the record
Defendant’s counterclaim alleging intentional infliction of emotional distress also fails to state a cause of action. To support such a claim, a party is “required to plead extreme and outrageous conduct, the intentional or reckless nature of such conduct, a causal relationship between the conduct and the resulting injury, and severe emotional distress” (Hyman v Schwartz, 127 AD3d 1281, 1283 [2015] [internal quotation marks and citations omitted]; see Howell v New York Post Co., 81 NY2d 115, 121 [1993]). It is well settled that “the alleged conduct must be ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and be utterly intolerable in a civilized community’” (Hyman v Schwartz, 127 AD3d at 1284, quoting Murphy v American Home Prods. Corp., 58 NY2d 293, 303 [1983] [internal brackets and ellipsis omitted]). Here, defendant merely alleges that “[m]embers of the board have engaged in an intentional, orchestrated campaign against [her] to insult, demean, threaten and otherwise injure her . . . [and this] has resulted
We reach a similar conclusion with regard to defendant’s final counterclaim alleging defamation. “The elements of a cause of action for defamation are a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se” (Tattoos By Design, Inc. v Kowalski, 136 AD3d 1406, 1407 [2016] [internal quotation marks and citation omitted], amended 138 AD3d 1515 [2016]; see Roche v Claverack Coop. Ins. Co., 59 AD3d 914, 916 [2009]). Defendant claims that plaintiff, at a shareholders meeting, “broadcast false statements about [her] . . . calling her immoral, saying that she was out to ‘destroy the fabric of the universe,’ . . . [and] ‘destroy everyone’s summer,’ and that she was a ‘700 pound gorilla.’” These alleged defamatory statements are insufficient to state a cause of action as they are opinions and not facts (see Rosner v Amazon.com, 132 AD3d 835, 837 [2015], lv denied 26 NY3d 917 [2016]), and our inquiry distills to whether a reasonable reader would believe whether the statements were conveying facts about defendant (see Gentile v Grand St. Med. Assoc., 79 AD3d 1351, 1353 [2010]). It is evident that the alleged statements were “intended to be invective expressed in the form of heavy-handed and nonsensical humor” (Wahrendorf v City of Oswego, 72 AD3d 1604, 1605 [2010] [internal quotation marks and citations omitted]). To the extent that defendant is attempting to allege special harm, the alleged statements do not signal that defendant committed a serious crime, and she does not allege that the statements relate to a matter of significance and importance in her profession (see Gentile v Grand St. Med. Assoc., 79 AD3d at 1354).
Finally, with regard to plaintiff’s request for counsel fees, we
Garry, J.P., Egan Jr., Lynch and Devine, JJ., concur. Ordered that the order is reversed, on the law, with costs, defendant’s motion denied, plaintiff’s cross motion granted, summary judgment awarded to plaintiff, defendant’s counterclaims dismissed and matter remitted to the Supreme Court for a determination of plaintiff’s counsel fees.