Lindsey v Metro Mgt. Dev. Inc.

Civil Court of the City of New York, Bronx County

Decided on April 8, 2026

Index No. CV-011480-24

Eric J. Wursthorn, J.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:
Papers Numbered

Order to show Cause/ Notice of Motion and Affidavits /Affirmations annexed 1,2

Answering Affidavits/ Affirmations 3,4

Upon the forgoing papers, the Court's Decision and Order is as follows:

This is an action for breach of contract in the amount of $2,543.64. In motion sequence 2, plaintiff Ann Lindsey, pro se, moves to amend the caption to substitute defendant Metro Management Development Inc. ("Metro") as party defendant for three proposed defendants: Kingsbridge Arms Inc. ("Kingsbridge Arms"), the Board of Directors of Kingsbridge Arms Inc. (the "Board"), and Yvonne Bumpurs in her representative capacity as President of the Board of Directors of Kingsbridge Arms Inc.

Metro, the managing agent for Kingsbridge Arms, opposes plaintiff's motion to amend. In motion sequence 3, Metro moves to dismiss the complaint pursuant to CPLR § 3211[a][1] and [7], or alternatively to compel plaintiff to serve and file a formal pleading pursuant to NYC Civil Court Act § 902[e]. Defense counsel for Metro also requests that in the event plaintiff's motion to amend is granted, its pending motion to dismiss the complaint be considered on behalf of any newly added party defendant. Plaintiff opposes defendant's motion to dismiss.

The Court hereby consolidates these motions for consideration and disposition in this single decision/order. For the following reasons, and after oral argument on the record (FTR:11:49am-12:07pm), plaintiff's motion is granted in part, and defendant's motion is denied.

Relevant allegations

For over 50 years, plaintiff has been a shareholder of Kingsbridge Arms, a limited-profit housing company organized under the Private Housing Finance Law, commonly known as the Mitchell-Lama Law. Plaintiff's shares are allocated to Unit 7M of the building located at 2865 Kingsbridge Terrace, Bronx, NY 10463 (the "building") pursuant to an Occupancy Agreement dated November 26, 1975. Metro is the managing agent for the building.

In this action, plaintiff seeks to challenge a utility pass-through surcharge she paid after she claims she received a letter from Metro charging her unit $211.97 per month for 12 months. In her endorsed complaint, plaintiff alleges "Breach of Lease for $2,543.64 with interest from 05/01/2023." In her application for a summons, plaintiff expands on her claim as follows: "[a]ccording to my occupancy agreement, Section 9 of the agreement between Kingsbridge Arms & the Corporation Law." Plaintiff has submitted a copy of the Occupancy Agreement to the Court.

Paragraph Ninth of the Occupancy Agreement provides in relevant part as follows: "[Kingsbridge Arms] agrees to provide necessary management, operation and administration of the project; pay or provide for the payment of all ground rents, taxes or assessments levied against the project[]."

Meanwhile, Paragraph Twentieth[4] of the Occupancy Agreement provides:

This Agreement is subject to the powers, rights and privileges, and the restrictions and limitations thereon, of [Kingsbridge Arms] as a Limited-Profit Housing Company under the supervision and control of the Housing and Redevelopment Board of the City of New York pursuant to the Limited-Profit Housing Companies Law, and to the rights and powers of said Housing and Redevelopment Board under said Law or any amendments thereto, by all of which both parties agree to be covered, and to all of which both parties hereto assent.

The Housing and Redevelopment Board of the City of New York referenced in the Occupancy Agreement is a predecessor of the New York City Department of Housing Preservation and Development ("HPD"), the former having been formally abolished and replaced by the latter in 1978 (New York City Charter Chapter 61, Section 1802).

Metro's answer asserts a general denial and one affirmative defense alleging that plaintiff's claim is "barred in whole because documentary evidence conclusively establishes that the alleged transactions or occurrences did not occur as alleged and/or that defendant has no liability to plaintiff."

After oral argument was held on March 3, 2026, both motions were submitted. The Court will first consider plaintiff's motion to amend, since it necessarily impacts the outcome of Metro's motion to dismiss.

Plaintiff's Motion to Amend

Leave to amend the pleadings "shall be freely given" absent prejudice or surprise resulting directly from the delay (Fahey v. Ontario County, 44 NY2d 934 [1978]). A motion to amend may be denied if the proposed amendment "is palpably improper or insufficient as a matter of law" (McGhee v. Odell, 96 AD3d 449 [1st Dept 2012]). Here, plaintiff has established that the caption should be amended to substitute Kingsbridge Arms for Metro. At oral argument, [*2]plaintiff indicated that she "realized after [she] went to a couple of court hearings that Metro Management was the wrong party." The Court finds that plaintiff has established a reasonable excuse for her delay in making this application given her pro se status. Moreover, defendant has offered no showing of prejudice or surprise due to plaintiff's late application.

Defendant argues that plaintiff seeks to bring entirely new parties into this action, unnecessarily complicate this action, or substantially alter the claims asserted in this case. The bulk of defendant's opposition is belied by defense counsel's implicit admission that Metro and the proposed defendants are united in interest. Accordingly, Kingsbridge Arms is substituted as a party defendant in place of Metro.

However, a residential cooperative board of directors is not an entity that may be sued separately from the corporation on whose behalf it acts. (Tahari v. 860 Fifth Ave. Corp., 244 NYS3d 534, 536 [2025]). Therefore, that branch of plaintiff's motion must be denied as the proposed cause of action against the Board is without merit.

Additionally, "individual board members may be validly sued for breach of fiduciary duty if the complaint pleads independent tortious acts on the part of those individual directors" (Weinreb v. 37 Apts. Corp., 97 AD3d 54, 57 [1st Dept 2012]). Although not explicitly a claim for breach of fiduciary duty, plaintiff failed to allege any specific act or inaction by Yvonne Bumpurs in her representative capacity that would justify bringing her into this action. Accordingly, that branch of the motion is also denied.

In conclusion, plaintiff's motion is granted in part so that the Clerk is directed to amend the caption to substitute Kingsbridge Arms Inc. as a party defendant for Metro Management Development Inc. The balance of plaintiff's motion to amend is denied.

Defendant's Motion to Dismiss the Complaint

In light of the Court's decision on the motion to amend, defendant's motion to dismiss is denied as moot as to Metro.

Upon defense counsel's request, the Court considers the balance of the defendant's motion to dismiss as a preanswer motion on behalf of Kingsbridge Arms. The court notes that plaintiff has submitted written opposition to defendant's motion and had an opportunity to orally argue the motion on the record. Nonetheless, by considering defendant's motion to dismiss on behalf of the newly-added defendant, the Court is taking a procedural shortcut which could unduly burden a self-represented litigant who may otherwise be denied the opportunity to oppose the motion to the extent that it has been made on behalf of a new party. However, in light of the court's decision to deny defendant's motion to dismiss on behalf of Kingsbridge Arms, plaintiff is not prejudiced by the Court's treatment of the motion, and the Court will thus consider it in the interest of judicial economy and to conserve the parties' resources.

At the outset, the Court notes that to the extent plaintiff requests "that the Civil Court of the City of New York in Bronx County be an Overseer" of a committee "authorized only to fulfill a temporary purpose to reconcile the financial status of the Company/Metro Management Development, Inc.", this Court is not a proper venue for such relief. The New York City Civil Court is a court of limited jurisdiction, which cannot entertain requests for equitable relief outside narrow grounds which do not appear to exist here.

The Court now addresses the motion on the merits.

In its motion, defendant argues that the complaint should be dismissed based upon documentary evidence (CPLR § 3211[a][1]) or alternatively that defendant is entitled to dismissal because plaintiff's complaint fails to state a cause of action (CPLR § 3211[a][7]).

On a motion to dismiss pursuant to CPLR § 3211, the pleading is to be afforded a liberal [*3]construction (Leon v. Martinez, 84 NY2d 83, 87-88 [1994]). The court must accept the facts as alleged in the complaint as true, accord plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (id. citing Morone v. Morone, 50 NY2d 481 [1980]; Rovello v. Orofino Realty Co., 40 NY2d 633 [1976]).

Documentary evidence proffered for a motion to dismiss pursuant to CPLR § 3211[a][1] must "utterly refute plaintiff's factual allegations" and "conclusively establish[] a defense to the asserted claims as a matter of law" (Amsterdam Hospitality Group, LLC v Marshall-Alan Assoc., Inc., 120 AD3d 431, 433 [1st Dept 2019]) [internal citations omitted].

Here, plaintiff alleges that Kingsbridge Arms violated Paragraph Ninth of the Occupancy Agreement by charging the pass-through surcharge for utilities which plaintiff claims Kingsbridge Arms is obligated to pay. Defendant has submitted the affidavit of Cleopatra Monroe, a Metro employee, who claims that the charges were due to increases in electric, gas and water costs between February 1, 2021 and January 11, 2023. Monroe claims that "[t]his utility increase was added to every tenant's maintenance bill for a 12-month term from May 1, 2023 to May 1, 2024."

Defendant has also submitted a letter dated March 21, 2023 from HPD which approved the surcharge. The 3/21/23 HPD Letter provides in relevant part as follows:

I am writing in response to the request by the board of directors of Kingsbridge Arms, Inc. for a utility pass-through.

HPD has reviewed the utility pass-through request and supporting documentation submitted on behalf of Kingsbridge Arms, Inc., which reflects an increase in electric, gas and water cost of $240,000.00 between the periods of February 1, 2021 and January 11, 2023. Pursuant to Section 3-11 of the Mitchell-Lama rules, HPD approves the utility pass-through in the amount of $462.43 per room. The pass-through shall be collected over twelve (12) months at a rate of $38.54 per rental room per month.

In accordance with the Mitchell-Lama rules, shareholders must be given at least 15 days' notice prior to the implementation of the surcharge by either ordinary mail or distribution under each apartment door, and by posting a copy of the approval letter in a prominent public place on the lobby floor of each affected building.

Please be advise (sic) shareholders at the development may be eligible for a Senior Citizen Increase Exemption subsidy as a result of this surcharge. If you need additional information regarding the SCRIE program, please contact . . .

Kingsbridge Arms, is supervised and controlled by HPD pursuant to paragraph Twentieth of the Occupancy Agreement and PHFL § 32 and § 2[21]. Mitchell-Lama rules permit Mitchell-Lama coops such as Kingsbridge Arms to apply for HPD approval to charge shareholder-occupants a surcharge for increased utility costs. Specifically, 28 RCNY § 3-11 sets forth the procedure by which a Mitchell-Lama coop must request HPD approval for such an increase as follows:

§ 3-11 Utility Pass-Through, Submetering, Direct Metering.

(a) Utility pass-through.

(1) Procedure for request of increase.

(i) A housing company which desires to implement an increase in that portion of the rent/carrying charges attributable to utilities must make a request in writing to HPD for permission to do so. Accompanying said request must be photocopies of utility bills for [*4]the period of two years prior to the date of request in order to compare current costs with prior costs.

(ii) The housing company must indicate the total annual amount of the increase requested and, in addition, indicate the amount of the increase on a per room per month basis.

. . .

(iv) The housing company's accountant shall verify in writing that the supporting figures submitted are correct.

(v) The housing company, upon submission of a request to HPD, shall post the request in a conspicuous public place on the lobby floor of each building. In the case of a rental development, a copy of the request with the back-up data shall be mailed to the President of the Tenants Association for review and comment. Additional copies of the request with back-up data shall be kept by the housing company for inspection by tenant / cooperators requesting same.

(2) Procedure for processing increase. The above data will be analyzed by the Division of Housing Supervision of HPD to determine the validity of the request for a utility pass-through. Tenant / cooperators shall be allowed thirty (30) days from the date of notification to the shareholders or Tenants Association to comment on the request. Upon determination by HPD that a pass-through of increased utility costs is warranted, based on an increase in utility rates, an increase in utility consumption or any combination thereof, HPD shall approve implementation of said utility pass-through and shall notify the housing company in writing of such approval and of the duration of said utility pass-through. In a rental development, a copy of the approval letter shall be sent to the President of the Tenants Association. HPD may deny the request if the housing company has sufficient resources to absorb the increases.

(3) Implementation by housing company.

(i) A utility pass-through shall become effective on the first day of the month following the approval of same. The housing company shall notify the tenant / cooperators of such utility pass-through at least fifteen (15) days in advance thereof by either ordinary mail or distribution under each apartment door, and by posting a copy of the approval letter in a conspicuous public place on the lobby floor of each building affected; if such notice is not given in sufficient time, then the pass-through shall become effective on the first day of the next following month after such notice is given.

(ii) A utility pass-through may be requested at any time that an increase in rates or usage occurs; however, no more than one (1) pass-through for the housing company will be approved by HPD for implementation within any six (6) month period.

Kingsbridge Arms argues in its motion to dismiss that since it applied for and obtained HPD approval for the pass-through surcharge, plaintiff's breach of contract claim should be dismissed as a matter of law.

Courts should read a contract in a manner that avoids inconsistencies and reasonably harmonizes its terms (Gessin Elec. Contractors, Inc. v. 95 Wall Associates, LLC, 74 AD3d 516 [1st Dept 2010]). Unambiguous contract provisions should be interpreted by the Court as a matter of law according to their plain and ordinary meaning (White v. Continental Cas. Co., 9 NY3d 264 [2007]).

Here, Paragraph Ninth requires Kingsbridge Arms to "pay or provide for the payment of all . . . assessments levied against the project" (emphasis added). Plaintiff claims that by [*5]charging a pass-through to plaintiff, Kingsbridge Arms violated Paragraph Ninth because Kingsbridge Arms expressly agreed to pay or provide for payment of all assessments levied against it, including the utilities at issue.

Defense counsel has failed to establish through documentary evidence that the pass-through surcharge did not violate Paragraph Ninth of the Occupancy Agreement as a matter of law. Instead, counsel simply states in conclusory fashion: " . . . HPD approval constitutes an absolute defense to Plaintiff's claim that the charges were unauthorized or in breach of the Occupancy Agreement . . . " (KE Affirmation in Opposition, Paragraph 22). Whether the pass-through constitutes an assessment which Kingsbridge Arms was obligated to pay or provide payment for under the Occupancy Agreement, as plaintiff alleges, remains to be determined. At this stage of the litigation, plaintiff only needs to state a cognizable claim for breach of the Occupancy Agreement, a burden she has easily met.

If there is a conflict between the Occupancy Agreement and applicable Mitchell-Lama rules, defendant has failed to establish that the latter supersedes the parties' private contract which would warrant dismissal of plaintiff's breach of contract claim. The Court notes that defense counsel has not addressed these issues in either the three-page affirmation in support of defendant's motion to dismiss or within its opposition papers to plaintiff's motion to amend.

At oral argument, defense counsel stated: "It sounds like she, her argument is that the occupancy agreement supersedes the code, I disagree with that. The code, the utility pass-through section makes it very clear that we did everything pursuant to the code." Not only has the defendant failed to even argue in its motion papers, let alone establish a legal basis for the conclusion that 28 RCNY § 3-11 either does not conflict with Paragraph Ninth of the Occupancy Agreement or otherwise supersedes said contract, defendant has failed to establish through documentary evidence that it followed all the procedures set forth in Section 3-11, including the notice requirements therein.

Otherwise, plaintiff explains: "[Kingsbridge Arms] must realize that 95% of its shareholders are senior citizens and are on a fixed income. An increase in maintenance over the next three years is a tremendous hardship for the Seniors, especially when the Company claims that $500,999.00 is owed in unpaid bills, and $366,724.00 are in arrears (non-payment of shareholders)."

The Court notes that the 3/21/23 HPD letter expressly provides "[p]lease be advise (sic) shareholders at the development may be eligible for a Senior Citizen Increase Exemption subsidy as a result of this surcharge. If you need additional information regarding the SCRIE program, please contact . . . " Plaintiff pointed out at oral argument that a majority of the shareholder-occupants at the building are senior citizens. There is no indication on this record that Kingsbridge Arms advised plaintiff or any other shareholders about the SCRIE program.

Accordingly, defendant's motion to dismiss is denied as to Kingsbridge Arms.

Remaining issues

The balance of defendant's motion, to compel plaintiff to serve and file a formal pleading pursuant to NYC Civil Court Act § 902[e] is also denied. "Where a court has doubts regarding the sufficiency of an indorsed complaint, the complaint should not be dismissed outright, but rather the plaintiff should be directed to serve and file a formal pleading pursuant to CCA 902(e)" (Gounder v. Upton Cohen & Slamowitz, 20 Misc 3d 141[A], 2008 NY Slip Op 51677[U]). Plaintiff has fully apprised defendant of what she is claiming in this action and the monetary damages she seeks; no more formal pleading is required. (Id.)

The Court adjourns this matter to June 16, 2026 at 9:30am for a pretrial conference. In [*6]the interim, Kingsbridge Arms is directed to file and serve an answer on or before May 1, 2026 . In the interest of judicial economy, the Court notes that plaintiff has requested discovery as follows: [1] how much Kingsbridge Arms has collected via the pass-through towards the outstanding Con Edison bills between February 1, 2021 and January 11, 2023; and [2] "copies of the Con Edison bill owed from 5/1/2023 and 5/1/2024 to compare Con Edison bill paid between 2/1/2021 and 1/11/2023." After Kingsbridge Arms has answered the complaint, Kingsbridge Arms is directed to respond to plaintiff's discovery requests, to the extent it has not already done so, within 30 days thereafter .

Conclusion

Accordingly, it is hereby

ORDERED that plaintiff's motion to amend the caption (motion sequence 2) is granted to the extent that the Clerk is directed to amend the caption to substitute Kingsbridge Arms Inc. for Metro Management Development Inc. ; and it is further

ORDERED that the balance of plaintiff's motion to amend is denied; and it is further

ORDERED that defendant's motion to dismiss (motion sequence 3) is denied as moot as to Metro since Metro has been substituted out of this action and is otherwise denied as to Kingsbridge Arms; and it is further

ORDERED that Kingsbridge Arms is directed to file and serve an answer on or before May 1, 2026; and it is further

ORDERED that Kingsbridge Arms is directed to respond to plaintiff's discovery requests outlined within this Court's decision, to the extent it has not already done so, within 30 days after its answer has been filed and served; and it is further

ORDERED that the parties are directed to appear for a pretrial conference on June 16, 2026 in Part 11, Room 503, 851 Grand Concourse, Bronx, New York .

Any requested relief not expressly addressed by the Court has nonetheless been considered and is hereby denied and this constitutes the decision and order of the Court.

Dated: April 8, 2026

Bronx, New York

Hon. Eric J. Wursthorn, J.C.C.