Plaintiffs Robin Eshaghpour, Elena Eshaghpour, and East River Condo LLC (collectively, the Eshaghpours), own several units in a luxury residential Manhattan condominium building, defendant Promenade Condominium. The Eshaghpours have been embroiled for several years in a dispute with defendant Board of Managers of the Promenade Condominium over alterations undertaken by the Eshaghpours to their units. That dispute has given rise to at least three actions between the parties here. The Board has contended that this alteration work, as it has been carried out, has repeatedly violated the condominium’s bylaws. As a result, the Board has assessed approximately $175,000 in bylaw-violation charges against the Eshaghpours’ units. The Board recorded liens against each unit and has brought a lien-foreclosure action, now pending before this court (Paul Goetz, J.). (See Board of Mgrs. of the Promenade Condominium v. Eshaghpour, Index No. 151598/2022.) In the current action, the Eshaghpours contend that the Board’s claimed violations are spurious and that the Board is itself liable in damages for repeatedly interfering with work that the Eshaghpours are permitted to carry out under an existing alteration agreement. The Board of Managers has also brought an action for injunctive relief against plaintiff Robin Eshaghpour, now pending before this court (Eric Schumacher, J.). In that action, the Board has alleged that on multiple occasions related to the underlying apartment-alteration dispute, Robin Eshaghpour engaged in threatening and abusive conduct toward an employee of the condominium’s property-management company that caused her to fear for her safety. (See Board of Mgrs. of the Promenade Condominium v. Eshaghpour, Index No. 151028/2022.) In November 2022, during the pendency of these three actions, the condominium adopted a bylaw amendment providing that if a unit owner is in arrears for more than 60 days in the payment of common charges, a special assessment, or “any other monies due and owing,” the Board may restrict the unit owner from use of the building’s amenities and nonessential services. (NYSCEF No. 20 at 2.) The Board informed the Eshaghpours that their units owe approximately $700,000, and that if they did not pay, the Board would restrict their access to building amenities and services pursuant to this provision. That $700,000 figure comprises the $175,000 in violations discussed above, approximately $110,000 in costs that the Board says resulted from their having to hire additional security guards due to Robin Eshaghpour’s allegedly harassing behavior; approximately $285,000 incurred by the Board in legal fees related to the parties’ various disputes; as well as interest, late fees, and some miscellaneous charges. (See NYSCEF No. 29 at 1-2.) In response, the Eshaghpours have brought on the current motion by order to show cause, seeking preliminary injunctive relief that would stay enforcement of the bylaws provision relied on by the Board, and would restrain defendants from limiting access of the Eshaghpours and their children to amenities and building services. (See NYSCEF No. 13 at 1.) The Eshaghpours also seek a temporary restraining order to similar effect pending the motion. (See id. at 2.) Upon receiving the proposed order to show cause and temporary restraining order, the court sought letter briefing from the parties, which has now been provided. (See NYSCEF Nos. 24-31 [letter briefing and exhibits].) The request for a temporary restraining order is denied. The Eshaghpours have not shown the requisite likelihood of success on the merits. They do not challenge the validity of the underlying bylaws provision. The validity of the violations and related charges—and thus also the Board’s entitlement to attorney fees under the bylaws as the prevailing party—is now being hotly contested in multiple actions. Thus, to obtain injunctive relief, movants must show a likelihood that the Board may not rely on those charges to restrict access to building amenities prior to a judicial determination of their validity. On the current record, they have not made out this showing. The Eshaghpours’ papers identify only one case as authority for their contention that “condominiums cannot enforce penalties, such as restricting or preventing access to amenities and services in the building, where the issue has not yet been adjudicated.” (NYSCEF No. 24 at 1, citing Weiss v. Bretton Woods Condominium II, 151 AD3d 905, 906 [2d Dept 2017].) This court is not persuaded that Weiss stands for that proposition. As this court reads Weiss (and its tangled trial-court history), that decision holds only that a condominium may not take steps to collect on attorney fees to which the condominium is not entitled under its declaration and bylaws. (See 151 AD3d at 906; see also Weiss v. Bretton Woods Condominium II, 2013 WL 12248153, at *2 [Sup Ct, Nassau County Dec. 4, 2013] [holding that the condominium's bylaws did not entitle it to charge a building unit owner for reimbursement of the particular category of incurred attorney fees at issue].) That holding is quite different from saying that a condominium may not restrict unit-owner access to amenities while the unit owner is in arrears on charges the validity of which the unit owner disputes. And the Eshaghpours have not in their motion papers or TRO-briefing pointed this court to any authority standing for that proposition. Absent such authority, this court perceives no basis on which to enter the requested TRO. Accordingly, it is ORDERED that plaintiffs’ requested temporary restraining order is denied. Dated: March 24, 2023
