| Pastrana v Cutler |
| 2014 NY Slip Op 01591 [115 AD3d 725] |
| March 12, 2014 |
| Appellate Division, Second Department |
| Robin Pastrana et al., Respondents, v Helaine AtlasCutler et al., Appellants. |
—[*1] Finger & Finger, A Professional Corporation, White Plains, N.Y. (Kenneth J. Fingerof counsel), for respondents.
In an action, inter alia, for a judgment declaring that the plaintiffs are entitled toinspect the books and records of Greencroft Condominium II, and for related injunctiverelief, the defendants appeal from stated portions of an order of the Supreme Court,Westchester County (Lefkowitz, J.), dated April 17, 2012, which, among other things,granted those branches of the plaintiffs' third motion which were to compel thedefendants, inter alia, to permit the plaintiffs to inspect the books and records ofGreencroft Condominium II, pendente lite, and to retain an independent organization toconduct a new election for the position of members of the Board of Managers ofGreencroft Condominium II.
Ordered that the order is affirmed insofar as appealed from, with costs.
Greencroft Condominium II (hereinafter Greencroft) is an unincorporatedcondominium association located in New Rochelle comprising 93 residential units. Anelected Board of Managers of Greencroft (hereinafter the Board) manages thecondominium complex pursuant to its by-laws. In October 2011, unit owners submitted apetition to the Board pursuant to the by-laws. The petition stated that 25% of the unitowners signed the petition, and it demanded a special meeting to be held within 30 daysafter receipt of the demand by the Board, for the purpose of removal of all of the currentBoard members and, if they were removed, for the election of new Board members.
In a letter dated November 21, 2011, the Board's attorney stated that the petition hadbeen reviewed by both legal and accounting professionals, and had been found to bedefective. In particular, counsel stated that the number of signatures deemed to be validamounted to a number of unit owners possessing less than the 25% of the totality of thecommon interests that was necessary to call for a special meeting, as required by theby-laws.
Thereafter, the plaintiffs commenced this action against individual members of theBoard and the Board itself, among others, seeking, inter alia, a declaratory judgment andinjunctive [*2]relief. In an order dated January 23, 2012,the Supreme Court granted the plaintiffs' motion to compel the defendants to permit theplaintiffs to review Greencroft's books and records, pendente lite, and to compel theconvening of a special meeting, "to the extent of permitting plaintiffs access to the booksand records at a mutually agreeable time and place, but no later than February 23, 2012,and to schedule a new election to be conducted by an outside organization, as a sufficientnumber of unit holders have requested same." The defendants did not appeal from thisorder.
The defendants continued to prevent the plaintiffs from inspecting the books andrecords, and declined to call a special meeting. The plaintiffs made two additionalmotions after the Board failed to comply with the order dated January 23, 2012, in whichthe plaintiffs sought to compel the defendants to make Greencroft's books and recordsavailable for the plaintiffs' inspection, and to compel the convening of a special meetingon a date certain. In both their second and third motions, the plaintiffs sought, as acorollary to the relief requested, that they be permitted to be responsible for choosing thelocation of the special meeting, giving notice of the special meeting, circulating proxiesin connection with the special meeting, and conducting the special meeting, and forretaining an independent organization to conduct the election to be held at the specialmeeting.
In an order dated April 17, 2012, the Supreme Court granted that branch of theplaintiffs' third motion which was to compel the convening of a special meeting and tocompel the defendants to make Greencroft's books and records available for theplaintiffs' inspection. The order dated April 17, 2012, also directed, among other things,that the plaintiffs were to schedule the date of the special meeting, set the time andlocation of the special meeting, send out the notice of the special meeting with a proxy,and conduct the special meeting. The order dated April 17, 2012, further authorized theplaintiffs to retain Honest Ballot Association or Election Services Solution to collect theproxies, conduct the election, and certify the results thereof for immediateimplementation. The defendants appeal from these portions of the order dated April 17,2012.
The defendants contend that the directives in the order appealed from were incontravention of Greencroft's by-laws and, thus, should not be enforced. To the extentthat the challenged directives had already been set forth in the order dated January 23,2012, the Supreme Court properly determined that, pursuant to the doctrine of law of thecase, it was appropriate to include them again in the order dated April 17, 2012.Although, pursuant to the law-of-the-case doctrine, this Court is not bound by the orderdated January 23, 2012, we decline to disturb the Supreme Court's invocation of thatdoctrine (see generallyRomagnolo v Pandolfini, 75 AD3d 632, 634 [2010]; Cosenza v Malvin,158 AD2d 653, 654 [1990]). Although the order dated April 17, 2012, may havedeviated somewhat from the strict letter of Greencroft's by-laws in permitting theplaintiffs to call for and conduct the special meeting, the Supreme Court actedappropriately pursuant to its inherent plenary power to enforce compliance with its priororders and to fashion a remedy for the proper administration of justice (see generallyConforti v Goradia, 234 AD2d 237 [1996]; Cane v Herman, 209 AD2d 368[1994]). In light of this inherent plenary power, we also reject the defendants' contentionaddressed to that portion of the order dated April 17, 2012, authorizing the plaintiffs toretain Honest Ballot Association or Election Services Solution to collect the proxies andconduct the election. Mastro, J.P., Leventhal, Austin and Sgroi, JJ., concur.