| Bishop v 59 W. 12th St. Condominium |
| 2009 NY Slip Op 06766 [66 AD3d 401] |
| October 1, 2009 |
| Appellate Division, First Department |
| Randa Bishop, Respondent, v 59 West 12th StreetCondominium, Appellant, et al., Defendants. |
—[*1] Marcus Rosenberg & Diamond LLP, New York (David Rosenberg of counsel), forrespondent.
Order, Supreme Court, New York County (Louis B. York, J.), entered September 26, 2008,which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for renewalof a prior motion to the extent of reinstating her claim for punitive damages against defendantcondominium, unanimously affirmed, without costs.
Plaintiff seeks damages based on defendant condominium board's alleged breach of fiduciaryduty in connection with its decision to halt plaintiff's alteration of her first-floor commercial unit.The plans involved venting a bathroom and new mechanical equipment in the kitchen through anexterior wall and onto the terrace owned by another unit owner, who was also a board member.Plaintiff, as owner of a commercial unit, had the right to make alterations without the board'sconsent, to the extent it did not create a "nuisance" or interfere with any other resident's peacefulpossession or proper use of the property.
The IAS court properly granted plaintiff's motion for renewal of her prior motion to theextent of reinstating her claim for punitive damages. Punitive damages are available in a tortaction where the wrongdoing is intentional or deliberate, presents circumstances of aggravationor outrage, evinces a fraudulent or evil motive, or is in such conscious disregard of the rights ofanother that it is deemed willful and wanton (Prozeralik v Capital CitiesCommunications, 82 NY2d 466, 479 [1993]).
Plaintiff's allegations of defendant condominium's misconduct in improperly withholdingapproval of her proposed alterations satisfy these criteria. Plaintiff alleges that the condominiumboard withdrew its prior approval at the behest of a board member whose property may havebeen affected by the proposed alterations. In addition, plaintiff claims that the board's action tookplace at a secret meeting in which the affected board member participated and where no quorumwas present. Finally, plaintiff alleges that the Department of Buildings twice rejected thecondominium's request to revoke her plan for renovations. If these allegations of intentional andwillful disregard of plaintiff's rights prove true, the trier of facts could well conclude thatpunitive damages are warranted.[*2]
Motion seeking leave to supplement brief granted.Concur—Mazzarelli, J.P., Saxe, Moskowitz and Renwick, JJ.