The defendants move for an order pursuant to CPLR R3212 granting them summary judgment dismissing the plaintiff's complaint. The plaintiff opposes the defendants' application.

This is an action by the plaintiff to recover damages based on causes of action for negligence, gross negligence, breach of [*2]fiduciary duty, breach of quiet enjoyment, and private nuisance. The plaintiff is the owner of Unit 11H at Woodhill Green, a residential condominium development in Wappingers Falls, New York built in approximately 1968. The operations of Woodhill Green are governed by a unit owner elected volunteer board of managers pursuant to its bylaws. As they relate to this action, the bylaws provide in Article V, Section 10 that:

(a) All maintenance of and repairs to any unit, structural or nonstructural, ordinary or extraordinary (other than maintenance of and repairs to any common elements contained therein not necessitated by the negligence, misuse or neglect of the owner of such unit) shall be made by the owner of such unit. Each unit owner shall have the additional obligation to maintain, repair and replace the plumbing, heating, electrical and lighting fixtures and equipment in the unit as well as the obligation to paint the interior of the unit. Each owner shall be responsible for all damages to any other unit and to the common elements resulting from his failure to effect such maintenance and repair.

(b) All maintenance, repairs and replacements to the common elements, whether located inside or outside of the units (unless necessitated by the negligence, misuse or neglect of a unit owner, in which case such expense shall be charged to such unit owner), shall be made by the Board of Managers and be charged to all unit owners as a common expense.

The plaintiff asserts that a pipe below her unit in the common area crawl space had been leaking and burst, causing water and mold damage to her unit including, inter alia, delaminating and uneven floors in the kitchen and bathroom and damage to tiles and fixtures. The subject crawl space is accessible only through a locked door to which the defendants hold the key. According to the plaintiff, around noon on October 5, 2007, she discovered she had no water after having had water earlier that morning. When she went to the basement of the building, she saw an employee of Woodhill Green, Paul Clark, in the crawl space attempting to fix the broken pipe. Within a few hours of discovering she had no water, the plaintiff asserts black mold covered virtually the entire floor and that black mold was visible on her wall either later that day or the next day. The plaintiff testified during her deposition that she had never had any water seepage or mold problem in her unit prior to October 5, 2007.

In addition to repairing the broken pipe, the defendants cleaned and treated the common area crawl space in which the pipe was located, installed a mechanical ventilation system and insulated the hot water pipes in the crawl space, installed new pressure-treated plywood with 2x4 wood cleats under the sub-floor of the plaintiff's unit and sistered new joists under the [*3]kitchen, bath and hall of the plaintiff's unit. The plaintiff failed to respond to the defendants' repeated offers over several years to replace the sub-floor in the plaintiff's kitchen.

In 2008 and 2009, the defendants arranged for Micahel R. Berta, an architect, to visit and inspect building 11 of the complex, including unit 11H and the crawl space in the basement of the building. Accordingly to Mr. Berta, the building as originally constructed resulted in improper ventilation in the crawl space. Mr. Berta further opined that the original construction and age of the building caused the damage to the existing plywood sub-floor in the plaintiff's unit. It is Mr. Berta's opinion that neither the bathroom disrepair nor the kitchen sub-floor damage were caused by the steam leak in October 2007. Concerning the plaintiff's specific unit, Mr. Berta noted a general lack of maintenance and upkeep and found that some of the window sills are in such poor condition that they likely allow water to pass through them.

It is well settled that in order "to obtain summary

judgment, it is necessary that the movant establish his or her cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment' in his or her favor (CPLR 3212[b]), and he or she must do so by tender of evidentiary proof in admissible form." (Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 NY2d 1065, 1067 [1979].) Parties opposing a motion for summary judgment are obliged to lay bare their evidentiary proof in admissible form in order to show that their allegations are capable of being established at a trial. (Albouyeh v. County of Suffolk, 96 AD2d 543 [2d Dept. 1983] aff'd 62 NY2d 681 [1984].) Bare conclusory allegations, expressions of hope or unsubstantiated assertions are insufficient. (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980].)

Plaintiff's first and third causes of action assert claims against the defendants for negligence and gross negligence, respectively. A cause of action for negligence requires a plaintiff to establish a duty, breach of that duty, and that such breach was the proximate cause of the damages suffered by the plaintiff. (Irizarry v. Heller, 95 AD3d 951 [2nd Dept. 2012].) A cause of action for gross negligence further requires a demonstration that the defendants engaged in conduct that evinces a reckless disregard for the rights of others or "smacks" of intentional wrongdoing. (See, Aphrodite Jewelry, Inc. v. D & W Cent. Station Alarm Co., 256 AD2d 288 [2nd Dept. 1998].)

As to the plaintiff's cause of action for negligence, the court finds that the defendants have failed to meet their prima facie burden establishing their entitlement to summary judgment. The defendants acknowledge they have a duty to maintain and repair the common elements of the condominium. Although the [*4]defendants contend they promptly repaired the leaky pipe, they have submitted no evidence as to when the leak was first discovered or how often the area of the leaky pipe was inspected. Moreover, while the defendants' architect opines that the damage to the plaintiff's bathroom and kitchen sub-floor were not related to the burst pipe, he offers no opinion as to the alleged mold damage. Accordingly, the defendants' motion to dismiss the plaintiff's first cause of action for negligence is denied.

As to the claim of gross negligence, the court finds that the defendants have submitted sufficient evidence establishing that the defendants did not engage in conduct that evinces a reckless disregard for the rights of others or "smacks" of intentional wrongdoing. The plaintiff's conclusory assertions that the defendants performed their duties in "bad faith" and are engaging in "intentional wrongdoing" with "reckless disregard", unsupported by any factual allegations or evidence in probative form of conduct evincing a reckless disregard for the rights of others or "smack[ing]" of intentional wrongdoing, are insufficient to state a cause of action alleging gross negligence. (See, Crystal Clear Dev., LLC, v. Devon Architects of NY, P.C., 97 AD3d 716 [2nd Dept. 2012], citing Colnaghi, USA. v. Jewelers Protection Servs., Ltd., 81 NY2d 821, 823 [1993].) Further, neither the purported affidavit submitted by plaintiff's expert, Robert P. Cerrato, nor the report from SanAir Technologies Laboratory, Inc. allegedly confirming the presence of mold in the plaintiff's unit, are in admissible form and therefore will not be considered by the court. Therefore, the defendants' motion to dismiss the plaintiff's third cause of action is granted.

The plaintiff's second cause of action asserts a claim against the defendants for breach of fiduciary duty.

It is well settled that the business judgment rule "bars judicial inquiry into actions of corporate directors taken in good faith and in the exercise of honest judgment in the lawful and legitimate furtherance of corporate purposes." (Auerbach v Bennett, 47 NY2d 619, 629 [1979].) Moreover,

[w]here a challenge is made by an individual owner to an action of a condominium board of managers, whether incorporated or not, absent claims of fraud, self-dealing, unconscionability or other misconduct, the court should apply the business judgment rule and should limit its inquiry to whether the action was authorized and whether it was taken in good faith and in furtherance of the legitimate interests of the condominium. (Schoninger v. Yardarm Beach Homeowners' Assoc., 134 AD2d 1, 10 [2nd Dept. 1987].)

The defendants do not dispute the existence of a fiduciary duty. Instead, they contend their duty was met and that they [*5]conformed with the bylaws by repairing the broken pipe and performing certain other repairs in the crawl space. Under the circumstances, the court finds that the defendants have met their prima facie burden of establishing that their repair efforts were taken in good faith and in furtherance of the legitimate interests of the condominium. The plaintiff, who acknowledges the defendants previously offered to repair the floor in her kitchen, has failed to raise any triable questions of fact in opposition. Therefore, it is ordered that the plaintiff's second cause of action is dismissed.

Plaintiff's fourth cause of action sounds in breach of quiet enjoyment. A cause of action for breach of the covenant of quiet enjoyment requires a tenant to demonstrate either an actual or constructive eviction. (Grammar v. Turits, 271 AD2d 644 [2nd Dept. 2000]. A condominium constitutes real property. (See, Real Property Law § 339-g). As such, a condominium owner is not a tenant. The plaintiff, therefore, has no cognizable claim against the defendants for breach of the covenant of quiet enjoyment. (Williams v. Leisure Knoll Assoc., Inc., 2012 NY Slip Op 31216U [NY Sup. Ct. 2012], citing Linden v Lloyd's Planning Serv., 299 AD2d 217 [1st Dept 2002], lv denied 99 NY2d 509 [2003]; Frisch v Bellmarc Mgt., 190 AD2d 383 [1st Dept 1993].) Therefore, the plaintiff's fourth cause of action is dismissed.

As to the plaintiff's sixth cause of action, a party may be liable for a private nuisance upon proof of an intentional and unreasonable invasion of the use and enjoyment of another's land. (See, Copart Indus. v Consolidated Edison Co. of NY, 41 NY2d 564 [1977]; Broxmeyer v United Capital Corp., 79 AD3d 780 [2d Dept 2010].) To recover damages on a claim of private nuisance, a plaintiff must show an interference that is (1) substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with the plaintiff's property right to use and enjoy the land, (5) caused by another's conduct in acting or failing to act (Aristides v. Foster, 73 AD3d 1105 [2nd Dept. 2010], citing Copart Indus. v Consolidated Edison Co. of NY, 41 NY2d 564 [1977].) Here, the defendants have established their prima facie entitlement to the dismissal of the plaintiff's sixth cause of action by submitting evidence establishing that they repaired the broken pipe and promptly made additional repairs to the common areas once they discovered the conditions that needed to be addressed.

In opposition, the plaintiff has submitted only conclusions and unsubstantiated allegations and assertions of her attorney which do not constitute evidence in admissible form sufficient to raise a triable issue of fact. (Zuckerman v. City of New York, supra, at 563.) As noted previously, neither the purported [*6]unnotarized affidavit of Robert P. Cerrato nor the report from SanAir Technologies Laboratory, Inc. are admissible. Accordingly, the plaintiff's sixth cause of action is dismissed.

Therefore, for the foregoing reasons it is ordered that the defendants' motion for summary judgment is granted with respect to the plaintiff's second, third, fourth and sixth causes of action. The defendants' motion regarding the plaintiff's first cause of action is denied.

The Court read and considered the following documents upon this application:

The foregoing constitutes the decision and order of the Court.

Dated:Poughkeepsie, New York

February 15, 2013

ENTER

HON. JAMES D. PAGONES, A.J.S.C.

021513 decision & order