MUSEY v. 425 EAST 86 APARTMENTS CORP (2020)

By order dated June 21, 2019, this court denied in part plaintiff's motion for leave to amend his complaint to assert additional claims against defendant 435 East 86 Apartments Corporation (the Co-op). (See NYSCEF No. 254.) Plaintiff now moves for leave to reargue that order as to two proposed causes of action. (See NYSCEF Nos. 262, 275.) The motion for leave is denied.

First, plaintiff seeks to reargue the denial of leave as to his first proposed cause of action. That cause of action would have sought, under CPLR Article 78, a declaration that the Co-op breached the terms of the lease in denying plaintiff exclusive use of the roof as the resident of a penthouse apartment. Plaintiff argues that declining to him leave to assert this cause of action, this court misconstrued the relevant portions of the lease. The court does not agree.

As discussed in this court's prior order, the lease provides that the portion of roof "outside" a penthouse apartment is included in the leased premises; and that if the apartment includes a portion of a roof "adjoining" the penthouse, only that part of the roof that is "appurtenant" to the penthouse is reserved for the exclusive use and enjoyment of the penthouse lessee. This court remains of the conclusion set forth in its prior order that this language from the lease unambiguously refers only to that rooftop terrace located on the same level as the penthouse apartment, rather than also including the roof above the penthouse apartment (as plaintiff would have it).

Second, plaintiff seeks to reargue the denial of leave to add his fifth proposed cause of action, a derivative cause of action against the Co-op on behalf of its shareholders. Plaintiff argues that this court erred in concluding that plaintiff had failed to sufficiently allege the pre-suit demands for action that he had made to the Co-op board. But this court remains of the conclusion that plaintiff's proposed amended complaint is insufficiently specific as to when he demanded that the Co-op board act, and also as to what action plaintiff sought from the board in those demands. Absent more detailed allegations on these points, plaintiff's proposed amended complaint failed to plead "with particularity the efforts of the plaintiff to secure the initiation of such action by the board," as the governing statute requires. (Business Corporation Law § 626 [c].)

Accordingly, it is hereby

ORDERED that plaintiff's motion for leave to reargue that portion of this court's order dated June 21, 2019, that denied plaintiff leave to add his first and fifth proposed causes of action is denied.

Gerald Lebovits, J.