Background

In October, 2003, plaintiff 715 Ocean Parkway Owners Corporation, a cooperative corporation which owns a residential building located at 715 Ocean Parkway in Brooklyn, commenced this action against defendant Seymour Klagsbrun, a shareholder and resident of the building, alleging that defendant performed unauthorized renovations, alterations and/or modifications to his units in violation of the proprietary leases for the units. In its amended verified complaint, plaintiff sets forth six causes of action: a permanent injunction against any further unauthorized renovations; unpaid maintenance arrears of $29,609.01 plus interest; a judgment declaring that defendant owes plaintiff unpaid maintenance arrears; a monetary judgment for all unpaid maintenance; attorneys fees; and an order of ejectment in the event that defendant does not pay maintenance arrears within five days of service of the monetary judgment with notice of entry.

By order dated January 27, 2006 (Hon. Yvonne Lewis, J.), the pretrial court granted plaintiff's motion (brought via order to show cause dated September 29, 2005) for a preliminary injunction enjoining defendant, his employees, agents and/or contractors from performing any and all renovations, alterations and/or modifications to the units until such time that defendant complied with the requirements of his proprietary leases by providing true copies to plaintiff of the requisite insurance certificates from all contractors performing work in the units as well as all requisite permits issued by the New York City Department of Buildings, and for an order directing that defendant allow plaintiff's attorneys, superintendent, engineer and/or architect access to the units for the purpose of photographing and inspecting same. By order dated February 17, 2006, Judge Lewis directed that discovery be conducted and completed by certain dates and directed that plaintiff file a Note of [*2]Issue on or before May 19, 2006. By order dated May 12, 2006, Judge Lewis granted the motion of defendant's prior counsel to withdraw, and further ordered, inter alia, that all responses to any discovery demands be served by May 26, 2006, that defendant appear for a deposition on or before June 12, 2006 and that defendant grant access in accordance with the January 27, 2006 order on or before June 9, 2006. Plaintiff subsequently filed motions to strike defendant's answer and for an order of contempt based in part upon defendant's refusal to comply with the January 27, 2006 and May 12, 2006 orders. On October 18, 2006, Judge Lewis issued an order stating, in part:

". . .This Court is well aware of the many attempts to settle this matter, the conflicts that have arisen between Mr. Klagsbrun and his previous attorneys and legal advisor, and the undue delays that have been occasioned primarily by Mr. Klagsbrun's seemingly dilatory tactics herein. Nevertheless, this court, in an effort to adjudicate this matter on its merits, is going to afford Mr. Klagsbrun one final opportunity to comply with its prior directives. Accordingly, Mr. Klagsbrun, following notice of entry of this order, shall 1. pay plaintiff's attorneys ninety ($90.00) dollars in costs and two-thousand, five hundred ($2,500.00) dollars in attorneys' fees for his repeated failures; 2. on 48 hour written notice sent to his address of record in these proceedings by certified mail, permit plaintiff's attorneys, an engineer/architect of its choosing, and the superintendent access to units 3D and 2E (sic) at 715 Ocean Parkway; and, 3. will comply with all other outstanding discovery requests set forth in this court's orders of September 29, 2005, January 27, 2006, February 17, 2006, and May 12, 2006; i.e., production of documents and his EBT, within 45 days. In the event of non-compliance with any of the foregoing three items, Mr. Klagsbrun's verified answer shall be automatically stricken, and he shall be precluded from offering any evidence which was to have been furnished but for his omissions."

By order dated January 5, 2007, defendant's verified answer was stricken and defendant precluded from offering any evidence at trial which was to have been furnished during discovery. By order dated April 24, 2007, Judge Lewis denied defendant's motion to set aside the Note of Issue. This matter was thereafter set down for a trial, which was conducted before this court on September 20, 2007.

Findings of Fact

Plaintiff is the owner of a cooperative residential building located at 715 Ocean Parkway in Brooklyn. Defendant is a shareholder in the cooperative corporation and the proprietary lessee of units 3D and 3E in the building. Defendant's ownership of the subject units is governed by a single form of proprietary lease, which contains the following relevant provisions:

Alterations

21. (a) The Lessee shall not, without first obtaining the written consent of the Lessor, which consent shall not be unreasonably withheld or delayed, make in the [*3]apartment or building, or on any roof, penthouse, terrace or balcony appurtenant thereto, any alteration, enclosure or addition or any alteration of or addition to the water, gas, or steam risers or pipes, heating or air conditioning system or units, electrical conduits, wiring or outlets, plumbing fixtures, intercommunication or alarm system, or any other installation or facility in the apartment or building. The performance by Lessee of any work in the apartment shall be in accordance with any applicable rules and regulations of the Lessor and governmental agencies having jurisdiction thereof. The Lessee shall not in any case install any appliances which will overload the existing wires or equipment in the building. Anything herein or in subparagraph (b) below to the contrary notwithstanding, the consent of the Lessor shall not be required for any of the foregoing alterations, enclosures or additions made by, or the removal of any additions, improvements or fixtures from the apartment by, a holder of Unsold Shares.

Notwithstanding the foregoing, no additions, alterations or improvements shall be made by a holder of Unsold Shares in the public areas of the building or in any apartment not leased to such holder of Unsold Shares without first obtaining the consent of the Lessor (which consent shall not be unreasonably withheld or delayed) and (if applicable) the lessee of such other apartment.

Termination of Lease by Lessor

31. If upon, or at any time after, the happening of any events mentioned in subdivisions (a) to (j) inclusive of this Paragraph 31, the Lessor shall give to the Lessee a notice stating that the term hereof will expire on a date at least five days thereafter, the term of this lease shall expire on the date so fixed in such notice as fully and completely as if it were the date herein definitely fixed for the expiration of the term, and all right, title and interest of the Lessee hereunder shall thereupon wholly ceased and expire, and the Lessee shall there upon quit and surrender the apartment to the Lessor, it being the intention of the parties hereto to create hereby a conditional limitation and thereupon the Lessor shall have the right to re-enter the apartment and to remove all persons and personal property therefrom, either by summary dispossess proceedings, or by any suitable action or proceeding at law or in equity, or by force or otherwise, and to repossess the apartment in its former estate as if this lease had not been made, and no liability whatsoever shall attach to the Lessor by reason of the exercise of the right of re-entry, re-possession and removal herein granted and reserved.

(e) If the lessee shall be in default in the performance of any covenant or provision hereof, other than the covenant to pay rent, and such default shall continue for thirty days after written notice from the Lessor. . .

Mordecai Greenspun is a shareholder in the plaintiff cooperative and currently [*4]president of its board of directors, and had served as a member on the board from 2002 through the present. Mr. Greenspun offered the following testimony:

Q. Did there come a time, to your knowledge, that Mr. Klagsbrun requested authorization to perform alterations to Apartment 3-D and 3-E?

A. Yes.

Q. And do you recall when that was?

A. It was some time in 2002, I believe.

Q. Was it in June, 2002?

A. I believe so.

Q. And did the board give Mr. Klagsbrun consent?

A. No.

Q. Written or otherwise?

A. No.

Q. Did there come a time that you became aware that Mr. Klagsbrun had started alterations and renovations in those apartments?

A. Yes.

Q. What steps, if any did the apartment corporation take in response?

A. We commenced an action to secure a cure. (Tr. 41-42).

Plaintiff's attorneys served two identical notices upon defendant (one for each of defendant's units) dated July 1, 2003 which notified defendant that he was "in default of paragraph 21 of [his] Proprietary Lease in that [he has] commenced an alteration in [his] apartment without obtaining the written consent of Lessor," and that should he "fail to cure [his] default on or before the 1st day of August, 2003, [he] will receive another notice stating that the term of [his] lease will expire on a date at least (5) days thereafter." Mr. Greenspun testified that subsequent to the issuance of these notices, defendant did not stop the renovation (Tr. 47). Following the issuance of the July 1, 2003 notices to cure, the board authorized plaintiff's attorneys to serve upon defendant two additional notices dated August 1, 2003 (one notice for each of defendant's units) which provided, in part:

PLEASE TAKE NOTICE, that you have failed to cure your default pursuant to the Thirty (30) Day Notice to Cure previously sent to you in that you have failed to cure the illegal alteration and failed to obtain written consent of Lessor (715 Ocean Parkway Owners Corp.) prior to commencing an alteration of the aforementioned apartment.

PURSUANT to your Proprietary Lease, paragraph 31 and other pertinent provisions of your Proprietary Lease, your lease will expire on August 11, 2003 as fully and completely as if it were the date herein for the expiration of the terms.

PLEASE TAKE FURTHER NOTICE, that as of that date, all right, title and interest under your Proprietary Lease shall thereupon cease and expire. Legal [*5]Proceedings will be commenced against you.

Mr. Greenspun testified that following the issuance of the notices of termination, defendant did not cease the alterations, and the board initiated the instant action (Tr. 49). Upon cross examination by defendant, Mr. Greenspun provided the following additional testimony with respect to the consent issue:

Q. How do you know that I did not have authority to make the alterations?

A. The board gave no approval.

** *

Q. Did you or the board ever take up the issue of whether my alterations require that I meet that I satisfy the rules of the law of the State of new York concerning disabled people, handicapped?

A. I don't know. (Tr. 58).

Michael Eisentstein, the Chief Financial Officer of plaintiff's management company, Wentworth Property Management, testified as to the maintenance arrears owed by defendant for his two units. Mr. Eisenstein's testimony, along with the documentary evidence prepared in the course of the management company's business which itemizes the charges due for the respective apartments, demonstrates that defendant owes maintenance and other charges in the total amount, exclusive of legal fees, of $1,502.06, with $331.66 due with regard to unit 3D and $1,170.40 for unit 3E.

In 40 West 67th Street Corp. v Pullman (100 NY2d 147 [2003]), the court invoked the "business judgment rule" to uphold a cooperative's termination of a shareholder's proprietary lease. The rule requires the court to "exercise restraint and defer to good faith decisions made by boards of directors in business settings" (id. at 153). Such deference is warranted "[s]o long as the board acts for the purposes of the cooperative, within the scope of its authority and in good faith" (Matter of Levandusky v One Fifth Ave. Apt. Corp., 75 NY2d 530, 538 [1990]). This court is mindful however that, while deferential, the Levandusky standard should not serve as a rubber stamp for cooperative board actions, particularly those involving tenancy terminations (40 West 67th Street Corp., 100 NY2d at 157). This court credits the testimony of Mr. Greenspun which establishes that defendant commenced alterations in his units without the consent of plaintiff's board of directors contrary to the terms and obligations under the proprietary lease. As a general rule, the signer of a written agreement is conclusively bound by its terms unless there is a showing of fraud, duress or some other wrongful act on the part of any party to the contract (Columbus Trust Co. v Campolo, 110 AD2d 616, 617 [1985], affd 66 NY2d 701 [1985]). Defendant has not impeached the credibility of Mr. Greenspun on cross examination, and as defendant was preluded by pretrial orders from offering any documentary evidence in his defense, this court finds that plaintiff established the [*6]board's actions were made in good faith and in accordance with the terms of the proprietary lease. In addition, the court credits the testimony and evidence offered by plaintiff with respect to the outstanding maintenance charges and assessments owed by defendant on his respective units.

Attorneys' Fees

In Hooper Associates, Ltd. v AGS Computers, Inc. (74 NY2d 487 [1989]), the Court of Appeals set forth:

"Words in a contract are to be construed to achieve the apparent purpose of the parties. Although the words might seem to admit of a larger sense, yet they should be restrained to the particular occasion and to the particular object which the parties had in view. This is particularly true with indemnity contracts. When a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed. The promise should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding facts and circumstances. Inasmuch as a promise by one party to a contract to indemnify the other for attorney's fees incurred in litigation between them is contrary to the well-understood rule that parties are responsible for their own attorney's fees, the court should not infer a party's intention to waive the benefit of the rule unless the intention to do so is unmistakably clear from the language of the promise" (74 NY2d at 491-492)(citations and internal quotation marks ommitted).

Paragraph 28 of the proprietary lease, upon which plaintiff bases its claim against defendant for attorney's fees, provides the following:

Reimbursement of Lessor's Expenses

28. If the Lessee shall at any time be in default hereunder and the Lessor shall incur any expense (whether paid or not) in performing acts which the Lessee is required to perform, or ininstituting any action or proceeding based upon such default, or defending, or asserting a counterclaim in any action or proceeding brought by the Lessee, the expense thereof to the Lessor, including reasonable attorney's fees and disbursements, shall be paid by the Lessee to the Lessor, on demand, as additional rent (emphasis added).

Under the terms of the above provision, plaintiff clearly may recover attorneys' fees expended in defending an action. On the other hand, where the cooperative is the plaintiff, the provision states only that expenses may be recovered for "instituting" the action. It is unclear however, as to whether this provision was intended to allow recovery of all fees and expenses incurred in the full prosecution of an action, beyond the mere "institution." Further, even if attorneys fees and expenses associated with "instituting" this lawsuit may be chargeable to defendant, it cannot be gleaned from the language of the provision exactly what such charges include. As a result of these ambiguities, this court declines to find defendant liable for [*7]plaintiff's attorneys fees, costs and disbursements incurred in the prosecution of this action.

A permanent injunction is a drastic remedy that will be issued only where plaintiff demonstrates it suffer irreparable harm in the absence of injunctive relief (Icy Splash Food & Beverage v Henckel, 14 AD3d 595 [2005]). Irreparable harm means injury for which money damages would be insufficient (see Klein, Wagner & Morris, v Lawrence A. Klein, P.C., 186 AD2d 631 [1992]). In this matter, plaintiff has not established that, in the absence of an injunction enjoining defendant from making any further alterations without the consent of the board, plaintiff would suffer "irreparable harm" which could not be remedied by monetary damages. Nonetheless, it is hereby declared that defendant has breached his proprietary lease by undertaking and continuing the renovations and/or alterations to his units without the consent of plaintiff's board, and that plaintiff has properly terminated the leases to the subject units in accordance with the lease terms and the notice of termination dated August 1, 2003. As a result, plaintiff is hereby granted an order of ejectment. Additionally, this court finds that defendant owes plaintiff arrears in the total amount of $1502.06 for both units, which may be reduced to a monetary judgment.

The foregoing constitutes the decision of the court.

Settle Judgment.

`E N T E R,

J. S. C.