Where else in this fair country could a dispute over replacement of a washing machine escalate to litigation over Judiciary Law 487, treble damages, attorney fees and the business judgment rule? Only in Manhattan and probably only in a coop. Plaintiff had to get permission to put in the washer/dryer and then when it broke down, bristled at the co-op house rule that the replacement had to be one of three brands. Unaccetapable!
Siller v Third Brevoort Corp. 2016 NY Slip Op 08603 Decided on December 22, 2016 Appellate Division, First Department also shows us that JL 487 has definitely hit the mainsteam, and may be seen as an additional cause of action to be used all the time.
“The gravamen of the complaint is that defendants Third Brevoort Corporation and Diane C. Nardone, the president of the coop board, breached plaintiff’s proprietary lease and a 1990 agreement under which plaintiff built a laundry room in her apartment by refusing to allow her to replace her broken washer and dryer with machines of her choice rather than any of the three brands that the coop’s house rules, as amended in 2010, allow for replacement machines.
The governing agreements flatly contradict plaintiff’s allegations of breach of contract (see Leon v Martinez, 84 NY2d 83, 88 ). Plaintiff has not identified a single term or provision that gives her a contractual right in perpetuity to install any replacement laundry machine she chooses. She relies generally upon the board’s approval of her plans to construct the laundry room in 1990 and the lease provision making her solely responsible for repairing her appliances, but nothing in those agreements gives her a right to repair the appliances in a manner that conflicts with the house rules. In fact, plaintiff concedes that she is required by the agreements to seek the board’s approval before replacing her machines.
Plaintiff’s reliance upon the provision of the lease requiring that any house rules be “reasonable” is unavailing (Braun v 941 Park Ave., Inc., 32 AD3d 21, 24 [1st Dept 2006], lv denied 7 NY3d 717 ). Even under a standard of reasonableness, rather than the less stringent business judgment rule, plaintiff has not established a breach, since the house rule at issue is reasonable on its face and was not unfairly targeted at plaintiff.”
“The claim that Nardone violated Judiciary Law § 487 by making false and misleading statements in an affirmation fails to state a cause of action, because Nardone is a party to this action who is represented by counsel and not acting in her capacity as an attorney (see e.g. Seldon [*2]v Spinell, 95 AD3d 779, 779 [1st Dept 2012], lv denied 20 NY3d 857 ).”