⌛ Professor Nuzzos Argument Summary: The Grade Appeal System

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Professor Nuzzos Argument Summary: The Grade Appeal System



If RPAPL 1 must apply regardless Salvation In Daniel O Malleys Bridge the form of the action against an objectionable tenant, the only possible Emotional Intelligence: A Case Study Professor Nuzzos Argument Summary: The Grade Appeal System declining to apply it to Ward Round: Complex Clinical Process present action would be either that the Levandusky rule somehow "overruled" the statute, or that by signing the proprietary lease the lessee waived the statute's protections. Jo Professor Nuzzos Argument Summary: The Grade Appeal System Racaniello, et al. O'Malley Jan. The exchange sees messages allegedly sent between Leigh-Anne, 30, and influencer Professor Nuzzos Argument Summary: The Grade Appeal System Hun, with singer Leigh-Anne seemingly accusing Jesy of blocking her former Little Mix Essay On Autistic People. Terrell Hodges, 19 Professor Nuzzos Argument Summary: The Grade Appeal System. Such misguided efforts generally meet with disappointing results. Like a municipal government, such governing boards are responsible for running the day-to-day affairs of Summary Of Gender In The Handmaids Tale cooperative and to that end, often have broad powers in areas that range from financial decisionmaking to promulgating regulations regarding pets and Professor Nuzzos Argument Summary: The Grade Appeal System spaces citation omitted. To the extent that the Counter Claim appears to advance a recognized Professor Nuzzos Argument Summary: The Grade Appeal System theory, it is that Bank of America lacks standing.

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Any other result would undermine the purpose of this unique form of shareholder-lease, in which the paramount interest of the Board of Directors is the welfare of the "entire community of residents in an environment managed by the board for the common benefit" id. In Levandusky , a cooperative tenant sought to renovate his kitchen. The proposed renovation necessitated the realignment of a steam riser in the kitchen, and the lease specifically provided that this type of alteration required the co-op board's prior written consent.

The board's consulting engineer advised that any change in the building's old piping system risked causing difficulties, or awakening "gremlins. Notwithstanding the board's determination, the tenant hired a contractor who moved the steam riser. The board issued a "stop work order," and the tenant brought an Article 78 proceeding to have the stop work order set aside. The Court of Appeals concluded that "the business judgment rule applies to the decisions of cooperative governing associations enforcing building policy, and that the action taken by the board in [that] case [fell] within the purview of [that] rule" id.

Significantly, the Court at described the co-op association as, a quasi-government — a little democratic sub society of necessity. Like a municipal government, such governing boards are responsible for running the day-to-day affairs of the cooperative and to that end, often have broad powers in areas that range from financial decisionmaking to promulgating regulations regarding pets and parking spaces citation omitted.

Through the exercise of this authority, to which would-be apartment owners must generally acquiesce, a governing board may significantly restrict the bundle of rights a property owner normally enjoys. The Court of Appeals said that the need for a "check [against abuse of a board's] potential powers to regulate residents' conduct, life-style and property rights" must be balanced with the desire to promote the primary objective of the cooperative structure, which is "protection of the interest of the entire community of residents in an environment managed by the board for the common benefit. Rafaloff , A. Surrey Coop. The majority specifically adopted the business judgment rule as preferable to a "reasonableness" rule, which would have allowed the court to independently evaluate the merits of a board's decision Levandusky , supra , at Under the business judgment rule, it is presumed that the actions of a co-operative's directors are "taken in good faith and in the exercise of honest judgment in the lawful and legitimate furtherance of corporate purposes" Auerbach v.

Absent a showing of a breach of fiduciary duty, "the exercise of [the co-op board's powers] for the common and general interests of the corporation may not be questioned, although the results show that what they did was unwise or inexpedient" Pollitz v. Wabash R. While the action reviewed in Levandusky was the denial of a tenant's application for a variance to move a steam riser in a tenant's kitchen, its holding has been repeatedly applied to boards' determinations of what are appropriate policies and procedures see , e. The majority decision in Levandusky explicitly stated that the business judgment rule should be applied to all co-op board determinations.

The Court found universal application of this standard of review appropriate because "unnecessary confusion [would be] generated by prescribing different standards for different categories of issues that come before cooperative boards" id. The deference granted to the board under this rule is consistent with the settled notion of a co-op as a voluntary association of individuals who agree to compromise their rights to obtain the benefits of living in a cooperative type of community.

This includes choosing "with whom they wish to share their elevators, their common halls and facilities, their stockholders' meetings, their management problems and responsibilities and their homes" Weisner v. Two recent cases from this Court have applied the business judgment rule to insulate co-op boards' valuations of tenants' shares in co-operative corporations. In Jones v. Surrey Co-op Apts, Inc. The tenant sued to recover market value of the stock, which was considerably higher. We granted the board's motion for summary judgment.

We found that the plaintiff failed to meet the burden of showing that the board of directors breached its fiduciary duty by engaging in discrimination, self-dealing, or other misconduct. We held that under Levandusky , the absence of these factors prohibited judicial inquiry into the actions of the co-op's directors id. More recently, in Schultz v. LEXIS , the plaintiff sought redress for the alleged over-allocation of shares to its apartment, asserting unequal treatment between the plaintiff and another apartment owner on the same floor. We concluded that "[p]laintiffs have not been subjected to discriminatory treatment, and they have set forth no other basis warranting departure from the application of the business judgment rule to subject the actions taken by the cooperative board of directors to judicial scrutiny" id.

Also of note is the Second Department's recent application of Levandusky in Sirianni v. Rafaloff A. In that case, the Second Department upheld a co-op board's decision to terminate a tenancy for breach of a lease provision prohibiting the use of a residential unit for commercial purposes see , Sirianni , supra , at There, as in Jones , and Schultz , the court found no basis to intrude upon the board's decision to enforce a lease provision. In fact, every shareholder who attended the meeting agreed that Pullman "has engaged in repeated actions inimical to cooperative living and objectionable to the cooperation and its shareholders. The affidavit of the managing agent of the co-op, submitted in opposition to Pullman's motion for summary judgment, emphasized that the termination of his tenancy will not cause Mr.

Pullman to forfeit the economic value of his apartment. He states that upon sale of the apartment, the co-op will "turn over [to Pullman] all proceeds after deduction of unpaid use and occupancy, costs of sale and litigation expenses incurred in this dispute. Contrary to the dissent's analysis, RPAPL 1 does not preclude our deference to the co-op board's determination to terminate Pullman's tenancy in this plenary ejectment action. While RPAPL 1 provides that a landlord may terminate a tenancy in a summary holdover proceeding, upon a showing " to the satisfaction of the court that the tenant is objectionable" emphasis supplied , Levandusky explicitly precludes judicial inquiry into the lawful actions taken by a co-op Board of Directors.

As applied here, the Levandusky holding is in complete harmony with RPAPL 1 , the vote of the supermajority of the shareholders of the co-op providing, in the realm of co-op governance, the functional equivalent of "competent evidence [which would] establish to the satisfaction of the court that the tenant is objectionable" see , RPAPL 1. Moreover, the Court of Appeals explicitly addressed the limitations on deference to co-op board action, and the role of the court in such situations when it wrote that the business judgment rule, "permits review of improper decisions, as when the challenger demonstrates that the board's action has no legitimate relationship to the welfare of the cooperative, deliberately singles out individuals for harmful treatment, is taken without notice or consideration of the relevant facts, or is beyond the scope of the Board's authority " id.

Further, our holding also does not eviscerate the important policy underlying RPAPL 1 , which is to prevent arbitrary self-help evictions. This is certainly an important consideration which applies equally to co-op tenants. However, following Levandusky does not mean that tenants are without protection if a board acts in an illegal, discriminatory, or bad faith manner. Under the facts presented, no improper motive has been established on the part of the co-op board. Pullman has not provided any factual support for his allegations that he was evicted based upon illegal or impermissible considerations see , Walentas v. Johnes , A. Moreover, the presumption of regularity applies, and respondent has failed to rebut it.

He has not provided any basis to show that the determination to terminate his tenancy was without a "legitimate relationship to the welfare of the cooperative" Levandusky , supra , at Thus, we defer to the unanimous vote of assembled shareholders to terminate respondent's tenancy, without passing on the merits of that decision. We also note that while Adams Hotel Owners Inc. Wolf 64 Misc. Sims Misc. However, were we to look behind plaintiff's actions, we would find that the record amply supports the determination that Pullman's tenancy is "objectionable. These actions have had a negative effect on all of the 37 other leaseholders including making them responsible for the payment of thousands of dollars in unnecessary legal fees.

To the cooperative shareholders of 40 West 67th Street in New York City, defendant David Pullman, the proprietary lessee of apartment 7B, is a difficult tenant, so difficult that the shareholders of his co-op by resolution voted to terminate his lease and seek his ouster from possession. The propriety of this termination is the subject of this appeal. The story of the relationship between Mr. Pullman and the plaintiff cooperative corporation is one of accusations, recriminations and, not surprisingly, litigation.

Problems began soon after Mr. Pullman moved into his apartment, when he began to complain of unreasonable noise coming from apartment 8B, immediately above his, in the form of excessively loud footsteps, stereo and television sound. His subsequent complaints included a claim of an illegal book binding business being run out of 8B, and another that toxic and flammable chemicals were being stored there. He complained first to the managing agent, but was dissatisfied with the responses he received — that 8B had been inspected and there was no evidence of any illegal business being conducted there, nor was there a lack of bedroom carpeting as he had claimed.

Pullman thereafter addressed his complaints of unreasonable noise to the cooperative board's president, but was not satisfied with the response. Failing to resolve his complaints, Pullman commenced four lawsuits against the cooperative corporation, its managing agent, its president, and his upstairs neighbors. He also circulated flyers to building residents complaining of his treatment and of other perceived misconduct. In addition, he claimed that in an altercation with his upstairs neighbor, he was physically assaulted, resulting in his neighbor's arrest.

The proprietary lease between the cooperative corporation and Pullman contains a provision allowing for termination of the lease upon the occurrence of specified events:. If, upon, or at any time after the happening of any of the events mentioned in subdivisions a to g. Pursuant to this provision, plaintiff cooperative called a special meeting of shareholders and held a vote at which over two-thirds of the other proprietary lessees concluded that Pullman had engaged in objectionable conduct and therefore his tenancy was undesirable. A notice was then sent to Pullman terminating his lease as of August 31, and asking him to surrender his apartment by that date. Thereafter, following his failure to do so, the co-op corporation brought this ejectment action in the Supreme Court on the ground that Mr.

Pullman's proprietary lease had been terminated due to his pattern of objectionable conduct. Defendant sought dismissal pursuant to CPLR for failure of the co-op to comply with the directives of RPAPL 1 , and plaintiff cooperative corporation cross-moved for summary judgment under CPLR c on its ejectment claim, relying on the standard of review established for the decisions and conduct of a co-op's board of directors in Levandusky v. One Fifth Ave. The IAS court granted defendant's motion to dismiss only as to the cause of action based upon the business judgment rule, and denied summary judgment to plaintiff on its remaining causes of action.

I would affirm the order on appeal, dismissing the cause of action that relies upon application of the business judgment rule, and leaving the remainder of plaintiff's causes of action to be decided at trial. In my view, the motion court properly held that the Levandusky rule is inapplicable in these circumstances, and that the co-op corporation has the obligation to demonstrate its entitlement to possession of the apartment by proving to the satisfaction of the court that the lessee had engaged in objectionable conduct. Moreover, based upon an examination of this record, I would hold that material issues of fact exist, precluding the grant of summary judgment. I respectfully disagree with the position taken by the majority, namely, that application of the rule enunciated in Levandusky v.

I suggest that the proprietary lessee, like any other tenant, is entitled to judicial scrutiny of the basis of the ejectment sought against this allegedly undesirable tenant see , RPAPL In Levandusky , supra , a residential cooperative corporation sought to enforce its determination prohibiting a proprietary lessee from realigning the steam riser in his kitchen as part of his renovation plans. The Court explained that such a board must be given broad leeway in order to enable it to manage the day-to-day affairs of the cooperative, to make business and financial decisions, to make and enforce building policy, and to promulgate house rules and regulations, for the benefit of its residents as a whole id.

Focusing on the most appropriate standard of court review for challenges by tenant-shareholders to the actions of cooperative boards, the Court held that:. So long as the board acts for the purposes of the cooperative, within the scope of its authority and in good faith, courts will not substitute their judgment for the board's. Stated somewhat differently, unless a resident challenging the board's action is able to demonstrate a breach of this duty, judicial review is not available id. Therefore, when tenant-shareholders challenge the business and financial decisions of a cooperative board, under Levandusky , the board will not be required to prove in court the reasonableness of its actions unless the tenant shows that 1 the board was acting other than to further the interests of the corporation, 2 the action taken by the board was outside the scope of its authority, or 3 the board was acting in bad faith id.

The types of disputes to which Levandusky has generally been applied have usually involved shareholder challenges to board decisions regarding management of the building and the enactment and enforcement of house rules see , e. Board of Mgrs. It has also been applied regularly with regard to decisions rejecting prospective apartment purchasers see , e. Greenbriar Owners Corp. Berkley Owner's Corp. The foregoing types of day-to-day business or financial decisions are qualitatively different from a decision to evict a tenant-shareholder from his home.

While it is eminently reasonable to impose Levandusky 's severely limited form of judicial review upon co-op shareholders' challenges to business decisions by their elected Boards of Directors, this limited type of review is simply too narrow a prism to protect tenants against the loss of their homes. While the ordinary management decisions of a co-op board may result in some sort of negative impact upon an individual tenancy, they cannot compare to the loss of a person's home.

Nor may we equate a board's decision to reject a proposed purchaser with an eviction of a present tenant; a proposed purchaser has no present possessory interest in the property, and is merely being prevented from obtaining it. However, it is not merely on policy grounds that we should require a co-op board to offer evidence in court proving the allegations that formed the predicate for the proceeding before permitting it to evict an allegedly undesirable tenant-shareholder. It is also because the Levandusky rule, which provides co-op boards with the broadest possible leeway to manage their property without undue interference, must yield to a statute which specifically controls the actions of a co-op board in a particular circumstance.

Notably, despite the apparent breadth of the Levandusky rule, it has never been used to permit a co-op board to avoid the application of an otherwise applicable statute. Its intended application is in regard to the types of actions by cooperative boards that are not controlled by statute. It would violate both law and logic to allow a co-op board to use Levandusky as a shield to avoid a shareholder's challenge if that challenge was based upon an alleged violation of law. For example, if a co-op board should decide to undertake some form of construction on its property in violation of applicable building codes or zoning laws, it is readily apparent that a tenant-shareholder would not be prevented by the Levandusky rule from challenging such planned construction on the ground that it was illegal.

Indeed, some might argue that such actions should be considered to be outside the scope of the board's authority, because a board cannot have the authority to act illegally. If we were merely presented with a claim that the cooperative corporation failed to follow the agreed-upon procedures for termination, namely, the board's calling a meeting, presenting its position to the tenants, and conducting a shareholder vote, Levandusky would indeed apply to any challenge that the Board had conducted itself improperly, absent a showing of bad faith or discrimination see , Sirianni v. Abeles , Misc. However, this is an action to recover possession of Pullman's apartment. Once the corporation, in the position of landlord, proceeds to seek a court order ejecting the proprietary lessee from his home, the rights and obligations of the parties are dictated by statute, and the lessee, like any other tenant, is entitled to the statutory protections designed to ensure that an assertedly objectionable tenant is not ejected from his home without a court's review of the evidence.

The protections provided by law to tenants facing eviction must apply with equal force whether the tenant is a renter or a proprietary lessee of a cooperative apartment. The articles of the RPAPL that provide for recovering possession of real property see generally , RPAPL Articles 6 7 reflect the recognition that our law must protect tenants' rights as well as the rights of property owners. These statutes provide for the simplest possible means by which landlords may regain possession of property wrongfully held by a tenant see , New York University v.

Farkas , Misc. Depending upon the provisions of the parties' lease, a lessor seeking to recover possession of property may be entitled to proceed by summary holdover proceeding, such as where a tenant remains in possession of premises following the expiration or automatic termination of his lease term resulting from an occurrence set forth in a conditional limitation; or, if circumstances do not warrant treating the tenant as holding over past the expiration or automatic termination of the lease, the lessor must commence an ejectment action in the Supreme Court see , Perrotta v.

In this instance, whether for a perceived strategic advantage or otherwise, plaintiff proceeded by an ejectment action rather than by summary holdover proceeding. In any event, however, plaintiff's legal position is the same either way: the lease term was terminated simply by the shareholders' vote deeming Pullman an undesirable tenant and the subsequent day notice sent to him pursuant to that vote. The language of the statute provides in relevant part that:. Although the statute specifically applies to summary holdover proceedings, I agree with the motion court that it must apply to an ejectment action as well.

If the cooperative corporation would be required to comply with the dictates of RPAPL 1 in the context of a summary holdover proceeding, it should not be permitted to avoid those requirements by proceeding in the non-summary, less streamlined context of a common-law ejectment action. The cooperative corporation stands in the exact position contemplated by the statute: that of a landlord "seeking to recover possession of real property," having terminated the lease after deeming the tenant "objectionable. The form of the lawsuit should not determine whether a proprietary lessee may be evicted based solely upon a resolution of shareholders. Indeed, plaintiff has not disputed that aspect of the motion court's holding.

If RPAPL 1 must apply regardless of the form of the action against an objectionable tenant, the only possible grounds for declining to apply it to the present action would be either that the Levandusky rule somehow "overruled" the statute, or that by signing the proprietary lease the lessee waived the statute's protections. Yet, neither of these approaches provides a viable basis for disregarding the statute. There can be no waiver of a statutory protection without a clear, unequivocal, and deliberate acknowledgment that this particular protection is known and that its relinquishment is intentional see , City of New York v. State of New York , 40 N. Employees Assn. Newman , 88 A. Department of Hous. And, a ruling by the Court of Appeals regarding a standard of review of corporate decision-making simply may not be relied upon to eliminate the applicability of a statute that would otherwise apply.

Applying RPAPL 1 to this ejectment action requires that the plaintiff present competent evidence, as opposed to its mere conclusion, establishing to the satisfaction of the court that the tenant is objectionable see , Brisbane House, Inc. Sims , Misc.

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