The opinion
Bleich v Board of Mgrs. of 13 Harrison St.
Condominium
2025 NY Slip Op 30182(U)
January 17, 2025
Supreme Court, New York County
Docket Number: Index No. 155721/2024
Judge: Mary V. Rosado
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
[FILED: NEW YORK COUNTY CLERK 01/17/2025 04:49 P~ INDEX NO. 155721/2024
NYSCEF DOC. NO. 108 RECEIVED NYSCEF: 01/17/2025
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. MARY V. ROSADO PART 33M
Justice
------------------------X INDEX NO. 155721 /2024
MICHAEL BLEICH, ALEXIS BLEICH,
MOTION DATE 06/21/2024
Plaintiff,
MOTION SEQ. NO. 001
- V -
THE BOARD OF MANAGERS OF 13 HARRISON STREET
CONDOMINIUM, 13 HARRISON LLC,ARNULF DAMERAU, DECISION + ORDER ON
JOHN DOES 1-5 MOTION
Defendant.
--------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 9, 27, 28, 39, 58, 59,
60,61,62, 63,64, 65,66,67, 68,69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 94, 95, 96, 97,
98, 99, 100, 101
were read on this motion to/for INJUNCTION/RESTRAINING ORDER
Upon the foregoing documents, and after a final submission date of September 19, 2024,
Plaintiffs Michael and Alexis Bleich ("Plaintiffs") order to show cause seeking a preliminary
injunction is granted in part and denied in part.
I. Background
This case involves a long-running dispute between Plaintiffs and Defendants regarding a
building located at 13 Harrison Street, New York, New York (the "Building"). The Building is a
condominium and Plaintiffs live in Unit 1, which has a 25% common interest while 13 Harrison
LLC (the "LLC") owns Unit 2, which has a 75% common interest. Defendant Arnulf Damerau
allegedly is the sole member of 13 Harrison LLC, and as president of the Board, seeks to alter the
Building's roof to create additional residential space for Unit 2. The renovation requires removal
of HVAC equipment that provides ventilation, heating and air conditioning to Unit 1. Plaintiffs
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now seek a preliminary injunction preventing the alteration project from going forward and alleges
various breaches of fiduciary duties.
II. Discussion
A. Standard
A preliminary injunction is an extraordinary provisional remedy requiring a special
showing, including a likelihood of ultimate success on the merits, irreparable injury if the
preliminary injunction is withheld, and a balance of the equities tipping in favor of the moving
party (Second on Second Cafe, Inc. v Hing Sing Trading, Inc., 66 AD3d 255 [l st Dept 2009]).
B. Likelihood of Success
The Court finds that there has been a sufficient showing of a likelihood of success on the
merits to weigh in favor of granting a limited preliminary injunction (see Barbes Restaurant Inc.
v ASRR Suzer 218, LLC, 140 AD3d 430 [1st Dept 2016]). The crux of this motion deals with the
removal of the HV AC Unit servicing Plaintiffs' unit. However, as proffered by Defendants, and
unrefuted by Plaintiffs, the HV AC Unit servicing Plaintiffs unit does not have a permit and is in
violation of DOB regulations. Article VI§ l l(d) of the By-Laws prohibit the unlawful use of the
Building and requires the observance of "all valid laws, zoning ordinances and regulations of all
governrnental bodies having jurisdiction." (NYSCEF Doc. 8). The by-laws dictate that "violations
of laws, orders, rules, regulations or requirements of any governrnental agency having jurisdiction
thereof. .. shall be eliminated, by and at the sole expense of the Unit Owners, or the Board of
Managers ... ". Because the HVAC Unit is operating without a permit and in violation of DOB
regulations, it is within the Board of Managers' right to remove it.
Moreover, the Declaration at § 6(b)(1) lists the "main roof area" as a limited common
element which "shall be exclusively used and maintained by the owner of the Unit 2" and explicitly
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states "said Unit Owner may modify the roof at their own expense, if allowed by law." (NYSCEF
Doc. 4). Therefore, the Court finds that it is within the Board's authority to remove the HVAC
Unit and the LLC's planned renovation project is authorized.
However, the Court is most concerned with Plaintiffs' breach of fiduciary duty claims. The
First Department has held that condominium boards owe owners fiduciary duties (LiNQI, LLC v
170 East End Condominium, 221 AD3d 409 [1st Dept 2023]). The Court takes issue with the
Board allowing an unpermitted HV AC to exist for over a decade, and only now seeking to remove
it for the benefit of the 75% owner of the condominium's renovation project (see also Onetti v
Gatsby Condominium, 111 AD3d 496,497 [1st Dept 2013] [board has duty to repair and maintain
"common elements"]). There is other evidence that Defendants may have breached their fiduciary
duty to Plaintiffs, who are the only other owners in the Building. Namely, Defendants allegedly
used their majority interest to exclude Plaintiffs from the Board, failed to notify them of Board
meetings or provide meeting minutes, and allegedly allowed the LLC to use Unit 2 as an unleased
housing accommodation for Mr. Damerau's employees in violation of Article III, Section 8 of the
By-laws. Thus, because there is some evidence that Plaintiffs may succeed on their breach of
fiduciary duty claims, this factor weighs in favor of a preliminary injunction.
C. Irreparable Injury
Plaintiffs have shown irreparable injury. Plaintiffs have demonstrated that their sole source
of heating, ventilation and air conditioning for their Unit is their HV AC installed on the roof. If it
is removed without a proper substitute, the Plaintiffs will be deprived of the use and enjoyment of
their home in a way that damages cannot adequately redress (Silverman v Park Towers Tenants
Corp., 206 AD3d 417 [1st Dept 2022] citing Errant Gene Therapeutics, LLC v Sloan-Kettering
Inst. For Cancer Research, 174 AD3d 473, 476 [1st Dept 2019]).
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D. Balance of the Equities
Finally, the Court finds the equities tip in Plaintiffs' favor. Here, the harm faced by Plaintiff,
namely that they may be frozen out of their Unit in the middle of winter, outweighs the harm to
Defendants resulting from a minor delay to their renovation scheme (Barbes Restaurant Inc. v
ASRR Suzer 218, LLC, 140 AD3d 430 [1st Dept 2016]). Indeed, as represented by counsel for
Defendants, Mr. Damerau, the President of the Board, does not even live in Unit 2, let alone the
United States. It would be inequitable to allow the renovation of Unit 2, which is not owner
occupied, to move forward at the expense of a family living in Unit 1 by depriving them of air
conditioning, ventilation, and heating.
However, as the HVAC is being operated without a permit, and according to the Bylaws
and Declaration the Board is obligated to remedy any condition that is in violation of any law or
regulation, the Court grants the preliminary injunction on the following limited and conditional
terms:
First, the parties must cooperate with one another in good faith to find a replacement
source of heating, cooling, and ventilation for Unit 1 immediately, which will allow Unit I to be
provided heating and cooling during the renovation project.
Second, upon installation of a replacement source of heating, cooling, and ventilation for
Unit 1, the violation stemming from the unpermitted HVAC Unit belonging to Unit 1 on the roof
shall be remedied.
Third, the renovation project which is the subject of this motion is enjoined from taking place
until Unit 1 has secured adequate heating and cooling, subject to approval by this Court. After this
Court is satisfied that Unit 1 will not suffer any disruption to heating or cooling during the
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renovation project, the Court will lift the injunction prohibiting the renovation project from moving
forward.
Accordingly, it is hereby,
ORDERED that Plaintiffs Michael and Alexis Bleich's motion seeking a preliminary
injunction is granted in part and denied in part upon the following limited conditions; and it is
further
ORDERED that Defendants are enjoined from removing, shutting off, tampering with, or
relocating the HVAC equipment that provides heating, ventilation, and air conditioning to
Plaintiffs' residential unit, Unit 1, at the condominium building located at 13 Harrison Street, New
Yark, New Yark, and are enjoined from taking any further steps to implement, proceed with, or
begin construction of any of the alterations of or on the roof of Unit 2 and the condominium
building located at 13 Harrison Street, New Yark, New Yark, until a replacement source of
heating, cooling, and ventilation for Unit 1 is identified and installed; and it is further
ORDERED that the parties are directed to begin cooperating, in good faith, to immediately
begin identifying a replacement source of heating, cooling, and ventilation for Unit 1, which will
allow Unit 1 to be heated, cooled, and ventilated during the proposed renovation project at 13
Harrison Street, New Yark, New Yark, Unit 2; and it is further
ORDERED that this injunction may be lifted or modified upon application to the Court by
either party once an adequate replacement for the heating, ventilation, and air conditioning for Unit
1 has been identified and installed; and it is further
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ORDERED that within ten days of entry, counsel for Plaintiffs shall serve a copy of this
Decision and Order, with notice of entry, on all parties via NYSCEF.
This constitutes the Decision and Order of the Court.
1/17/2025
DATE
0:JHtjN . V {(n. ~ " .J s c. J.S.C.
MARV V. ROSADO,
~
CHECK ONE: CASE DISPOSED NON.-FINAL DISPOSITION
GRANTED □ DENIED GRANTED IN PART □ OTHER
APPLICATION; SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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