DECISION AFTER TRIAL Claimant, IAN S. CARPENTER is the owner of a one-bedroom apartment at the SHORE TOWERS CONDOMINIUM at 25-40 Shore Boulevard in Astoria, Queens, New York, who states he owns a 0.21039 percent share in said condominium, and this action is against said Condominium Board of Managers for “Breach of Contract or Warranty for $10,000.00.” This action was filed on 10/04/2021 and ultimately on for trial before this Court on 12/06/2023. Claimant represented himself Pro Se, defendant appeared by Counsel. This matter was conferenced for possible settlement discussion beforehand, fruitlessly. Claimant called as his first witness Condominium Board of Managers member CHONA RASKIN, who happened to be present in the courtroom with Counsel. He questioned her seeking to get her to admit the Condominium authorized payments improperly for numerous expenses for a Condominium owner (and sponsor’s) taxes, and that their permitting said owner to use his “medical units” for non-conforming storage use on residential floors incurring criminal, civil building and fire violations, that he, as owner ended up being responsible for, a share of the costs. Said witness, who was present denied said facts, “opening the door” for Claimant to introduce a video of NBC network news coverage where said Board Member acknowledged the existence of violations and the Condominium would be acting to clear them. Claimant also called as a witness Board Manager MILADY BAEZ, whose testimony was described by claimant as stating the Board had sent him charges for fines accrued from city agencies for units privately, but the charges belonged to the owner of the illegal storage units and not him. As per claimant, said witness denied the Board was ever paid the legal fees for said Board Manager owner, but claimant sough to refute this by introducing “Board Minutes”, a letter and an inter-board email. It is to be noted that Counsel for Defendant did not object to said witnesses being called by Claimant, and neither party asked for a hostile witness declaration, but the fact that said witnesses as members of the Board of Managers were in the nature of parties to the action and denied Claimant’s allegations, opened the door for him to introduce the evidence he used to examine them and to a limited extent, impeach them. Counsel for Defendant argued vigorously that Claimant was a filer of frivolous lawsuits against the Board and he had no right of private action against the Board; that there could be no finding of Breach of Contract because there was no individual contract between Claimant and Defendant, that his remedy if any would more appropriately be a share holder’s derivative action. At the conclusion of testimony both parties were directed to submit post trial memorandums. Pro Se Claimant did not cite any case law but referenced a prior Queens County Supreme Court action he filed under index No.: 711276/2017, between the same parties that he represented as settled by the Board for $15,000.00 to refute the allegations of frivolous filings, however he did reduce his “ad damnum” claim to $425.00 based on his calculation of his .210391 percent share of the $202,302.00 allegedly misspent by the Board. (As opposed to the $10,000.00 he originally sued for, and the larger amount he claimed at trial.) Counsel for Defendant, Russell T. Edwards of Counsel, interposed a well written Post-Trial Brief, citing substantial case law and statutes that he argued supported Defendant’s position that “Claimant’s Breach of Contract Claim Lacks Merit, this Board does not owe Carpenter a duty (individually) that he IMPROPERLY SEEKS RELIEF…outside the Court’s jurisdiction)”, that would require an Article 78 proceeding(which would be past the statute of limitations) or a derivative action; both outside the jurisdiction of the Court, and lastly that the Board’s decisions are protected by the Business Judgment Rule, citing Levandusky v. One Fifth Ave. Corp., 75 NY 2d 530, 538 (NY Court of Appeals) 1990. However, Levandusky, ibid., provides that “the business judgment rule does not apply to Boards or individuals who fail to act in good faith, or within the scope of their authority (Levandusky, ibid at 538). Board of Managers of the 229 Condominium v. JPS Realty Co. 308 A.D. 2d 314 (1st Dept. 2003), both cases cited in Mishkin et al. v. Board of Managers of the 155 Condominium, et al. Supreme Court NY County 12/2/2003. Clearly Claimant is in a contractual relationship with the Board, he is obligated to pay the legitimate charges he agreed to pay when he purchased his premisses. In Kaung et al. v. Board of Managers of the Biltmore Towers Condominium Association et al. 22 Misc 3d 854, (Supreme Court Westchester County 12/10/08.,Hon. Alan D. Scheinkman in a case where he found the Condominium Board acted outside its authority, found the “owners had contractual right to enforce restrictive covenant in condominium association by laws.” Here the fact that Board Members, by the evidence presented seems to have acted outside their authority in suffering municipal violations, some apparently criminal to exist, that and all owners would have to contribute to the payment of the fines for, as they seem to acknowledge requires and finding by a preponderance in Claimant’s favor. This Court’s obligation in a Small Claims action is to render “substantial justice”, especially when Claimant reduced his claim to $425.00, results in this Courts decision to so award Claimant, and as an owner and pro se litigant resolve any issue as to the form or theory he brought his action on in his favor. Any issue to his calculation of said $425.00, is not only a de minimus issue, but any discrepancy may be considered in the nature of an award of consequential, and/or punitive damages by this Court. Dated: April 8, 2024
