Board of Mgrs. of the 7 MetroTech Condominium v. Deruytter

Board of Mgrs. of the 7 MetroTech Condominium v

Deruytter

2025 NY Slip Op 31651(U)

May 6, 2025

Supreme Court, New York County

Docket Number: Index No. 655761/2019

Judge: Kathleen Waterman-Marshall

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 05/06/2025 04:48 PM INDEX NO. 655761/2019

NYSCEF DOC. NO. 177 RECEIVED NYSCEF: 05/06/2025

SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. KATHLEEN WATERMAN-MARSHALL PART 31M

Justice

---------------------------------------------------------------------------------X INDEX NO. 655761/2019

THE BOARD OF MANAGERS OF THE 7 METROTECH

CONDOMINIUM 08/12/2024,

10/09/2024,

Plaintiff, MOTION DATE 11/29/2024

-v- MOTION SEQ. NO. 002 003 004

WOUTER DERUYTTER,

DECISION + ORDER ON

Defendant. MOTION

---------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 002) 24, 25, 26, 27, 28,

29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 52, 53, 73, 74, 75, 76,

77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 159

were read on this motion to/for PREL INJUNCTION/TEMP REST ORDR .

The following e-filed documents, listed by NYSCEF document number (Motion 003) 54, 55, 56, 57, 58,

59, 60, 61, 62, 63, 64, 65, 66, 68, 70, 71, 94, 95, 96, 97, 98, 99, 160

were read on this motion to/for CONTEMPT .

The following e-filed documents, listed by NYSCEF document number (Motion 004) 102, 103, 104, 105,

106, 107, 108, 109, 111, 112, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128,

129, 130, 131, 132, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152,

153, 154, 155, 156, 157, 158

were read on this motion to/for CONTEMPT .

This matter was administratively transferred to Part 31 in late January 2025.

Upon the foregoing documents, and following oral argument on February 28, 2025, the

motions by plaintiff The Board of Managers of the 7 MetroTech Condominium (the “Board”) for

an order: (1) granting a preliminary injunction against defendant Wouter Deruytter (“Mr.

Deruytter”) and anyone claiming occupancy in units 5PRO, 16PRO, and 16D (the “Units”) of the

building located at 365 Bridge Street a/k/a 101 Willoughby Street, Brooklyn, New York 11201

(the “Building”) (Motion Seq. 002); (2) holding Deruytter in criminal and civil contempt for

violating a court order and awarding the Board attorney’s fees (Motion Seq. 003 and 004); and

(3) for a default judgment (Motion Seq. 004), are granted in part.

Background

The Board commenced this action to recover amounts it paid for violations issued by the

New York City Department of Buildings, Environmental Control Board, resulting from Mr.

Deruytter’s unauthorized alterations to one or more of the Units, in breach of the Building’s

655761/2019 THE BOARD OF MANAGERS OF THE 7 METROTECH CONDOMINIUM vs. Page 1 of 6

DERUYTTER, WOUTER

Motion No. 002 003 004

1 of 6

[* 1]

FILED: NEW YORK COUNTY CLERK 05/06/2025 04:48 PM INDEX NO. 655761/2019

NYSCEF DOC. NO. 177 RECEIVED NYSCEF: 05/06/2025

Declaration and By-Laws (the “By-Laws”). The complaint alleges causes of action for breach of

contract, unjust enrichment, declaratory judgment, attorney’s fees, and a preliminary injunction.

Before the administrative transfer of this matter, the Board moved by Order to Show

Cause for a preliminary injunction (Motion Seq. 002), arguing that Mr. Deruytter has

continuously violated the By-Laws, including performing unauthorized alterations to the Units

and engaging “in a pattern of disruptive and offensive behavior” in the Building. Specifically, the

Board alleges that: Mr. Deruytter has allowed unauthorized guests, including Patrick Sands

(“Sands”), to occupy Unit 16PRO, a professional unit in the Building solely meant for

professional use; and Mr. Deruytter and such unauthorized guests routinely disturb the

Building’s permitted occupants and staff by engaging in “disruptive and dangerous” behavior,

which has impacted the safety and wellbeing of everyone in the Building, resulting in “frequent”

calls to the police and disturbances in the Building, including in its common areas.

By Decision and Order, dated August 13, 2024, the prior jurist (Hon. Louis Nock, JSC)

granted the Board temporary relief (the “August 2024 Order”), restraining Mr. Deruytter from:

(1) permitting anyone to sleep overnight in Unit 16PRO; (2) creating a nuisance and/or a source

of annoyance to the Building’s residents and interfering with the peaceful possession or proper

use of the premises by its residents or occupants by engaging in objectionable conduct, including

causing excessive noise and loitering in the Building’s common areas; (3) disobeying,

threatening, harassing, and/or intimidating the Building’s staff, including verbal abuse,

threatening with weapons, and or causing physical harm in any way; and (4) violating the By-

Laws and the Building’s Rules and Regulations (NYSCEF Doc. No. 47).

In support of its motion for a preliminary injunction, the Board submits the By-Laws,

which provide, inter alia, that: nuisance is prohibited in the Building, and any use of any unit or

common area of the Building cannot create a source of annoyance to the Building’s residents or

interfere with the peaceful possession or proper use of the Building by its residents or occupants;

professional units shall be used in compliance with applicable law; the Board may, upon the

Board’s prior written consent, authorize the use of any unit for any other purpose in compliance

with law and certificate of occupancy; the Board is entitled to take proceedings to enjoin, abate,

or remedy any continuance or repetition of any violation of the By-Laws; and the Board is

entitled to reimbursement of costs and expenses, including reasonable attorney’s fees and

disbursements, relating such proceedings. The Board also submits the Building’s staff logs,

showing a history of incidents involving unauthorized guests visiting one of the Units and/or

calls to the police, and the Building’s guest policy contained in the Building’s Rules and

Regulations (an addendum to the Building’s By-Laws), providing that any unaccompanied

guests are prohibited from loitering in the hallways or other common areas in the Building, and

that the Board or the Building’s management or staff may, in its discretion, require occupants to

personally escort their guests from the lobby to units, and communications showing that such

policy applies, and was communicated, to Mr. Deruytter.

Mr. Deruytter opposes, arguing that he has not violated the By-Laws1, which permit

alterations to the Units (with exceptions) to the extent not prohibited by law, because he simply

made “cosmetic improvements” to Unit 16PRO and, thus, the Board’s consent to such

1 Specifically, Article 12 of the Building’s Declaration (NYSCEF Doc. No. 78).

655761/2019 THE BOARD OF MANAGERS OF THE 7 METROTECH CONDOMINIUM vs. Page 2 of 6

DERUYTTER, WOUTER

Motion No. 002 003 004

2 of 6

[* 2]

FILED: NEW YORK COUNTY CLERK 05/06/2025 04:48 PM INDEX NO. 655761/2019

NYSCEF DOC. NO. 177 RECEIVED NYSCEF: 05/06/2025

improvements was not required. Mr. Deruytter also claims that the Board is unlikely to succeed

on the merits because the violations have allegedly been resolved (NYSCEF Doc. No. 93).

The Board subsequently moved, by separate Orders to Show Cause (Motion Seq. 003 and

004), for orders: finding Mr. Deruytter in civil and criminal contempt of the August 2024 Order;

sentencing Mr. Deruytter to a term of imprisonment for willfully violating the August 2024

Order; and awarding the Board attorney’s fees for filing the instant motions for contempt.

In support of its first contempt motion (Motion Seq. 003), the Board asserts, inter alia,

that Mr. Deruytter has violated the August 2024 Order by continuously: (1) permitting

unauthorized guests to stay overnight in Unit 16PRO in violation of the By-Laws; (2) creating a

nuisance in the Building by failing to escort guests from the lobby to the Units in violation of the

Building’s guest policy which has resulted in numerous calls to the police and/or police escorting

unauthorized guests from the Building; and (3) disregarding the Building’s By-Laws by

permitting banned guests into the Building. One such incident involved a dispute between two

unauthorized guests who argued and threatened each other in the Building’s lobby while

blocking the elevators. Another incident involved a third unauthorized guest who allegedly

harassed and threatened a member of the Building’s staff.

In opposition, Mr. Deruytter argues that: he did not allow anyone to sleep overnight in

Unit 16PRO because he notified Sands of the restriction; and he had no knowledge or control

over the incidents alleged to have caused a nuisance in the Building because the unauthorized

guests were not his guests, but rather Sands’ guests.

On its second contempt motion (Motion Seq. 004), the Board asserts the same claims as

its first but highlights an incident that occurred on November 21, 2024, in which police removed

from the premises a naked unauthorized guest who was roaming the Building midday for at least

an hour. Based on the Board’s security footage, the unauthorized guest appeared to be visiting

Sands in Unit 16PRO. The Board also argues that it is entitled to a default judgment against Mr.

Deruytter for allegedly failing to file an answer to the amended complaint.

In opposition, Mr. Deruytter argues that: the Building’s staff permits Sands to escort his

guests from the lobby without notifying him of such guests, which prevents Mr. Deruytter from

knowing of their presence in the Building. Mr. Deruytter also argues that the Board’s motion for

a default judgment should be denied because he answered the original complaint and after four

years of inactivity the Board moved to amend the complaint, which was allegedly never served

upon him.

Discussion

Injunction

The standard for granting a preliminary injunction is well established. Pursuant to CPLR

§ 6301, the movant must show: (1) the likelihood of success on the merits; (2) irreparable injury

absent the granting of a preliminary injunction; and (3) a balancing of the equities that favors the

movant’s position (Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 NY3d 839, 840 [2005]). The

decision to grant or deny a preliminary injunction lies within the sound discretion of the trial

court (id.).

655761/2019 THE BOARD OF MANAGERS OF THE 7 METROTECH CONDOMINIUM vs. Page 3 of 6

DERUYTTER, WOUTER

Motion No. 002 003 004

3 of 6

[* 3]

FILED: NEW YORK COUNTY CLERK 05/06/2025 04:48 PM INDEX NO. 655761/2019

NYSCEF DOC. NO. 177 RECEIVED NYSCEF: 05/06/2025

Here, the Board has met their burden of establishing a likelihood of success on the merits

in that the dispositive documents show that Mr. Deruytter has violated the By-Laws by, inter

alia, performing alterations to Unit 16PRO without the requisite permits and allowing

unauthorized guests to occupy a professional unit in the Building. The Board also demonstrated

irreparable injury in the absence of a preliminary injunction given the history of incidents

involving unauthorized guests which have, on several occasions, resulted in police intervention.

Finally, the balance of equities clearly favors the Board. The detriment to Mr. Deruytter by

granting the injunction and directing him to abide by the By-Laws – which he is required to do in

the first instance, as a unit owner – is far outweighed by the detriment that would inure to the

Building’s authorized occupants and staff if the motion were denied. Accordingly, a preliminary

injunction is proper but is limited to Mr. Deruytter, rather than third parties who either claim

occupancy in the Units or enter the Building under or on Mr. Deruytter’s behalf as the Board

requests, since such third parties are not parties in this action and the Court lacks jurisdiction

over them. Accordingly, the Board’s request for a preliminary injunction is granted but limited to

the relief provided in the August 2024 Order.

Contempt

Under Judiciary Law § 750, criminal contempt based upon an alleged violation of a court

order “involves an offense against judicial authority and is utilized to protect the integrity of the

judicial process and to compel respect for its mandates” (Dep’t of Env’t Prot. of City of New

York v Dept of Env’t Conservation of State of N.Y., 70 NY2d 233, 239 [1987]; El-Dehdan v El-

Dehdan, 114 AD3d 4, 15 [2d Dept 2013] [criminal contempt is “an offense against the authority

of the court”]). The purpose of a criminal contempt proceeding “is solely to punish the

contemnor for disobeying a court order” and the penalty imposed is punitive (Dep’t of Env’t

Prot. of City of New York, 70 NY2d at 239; El-Dehdan, 114 AD3d at 11 [criminal contempt

“aims to vindicate the authority of the court”]; Rubackin v Rubackin, 62 AD3d 11, 15 [2d Dept

2009] [“When the purpose of committing an individual to jail is in the nature of vindicating the

authority of the court, protecting the integrity of the judicial process, or compelling respect for

the court’s mandates, the contempt is a criminal contempt”]; New York City Transit Auth. v

Transp. Workers Union of Am., AFL-CIO, 35 AD3d 73, 86 [2d Dept 2006] [“A fixed sentence of

imprisonment is viewed as criminal if imposed retrospectively for a completed act of

disobedience, and where the contemnor cannot shorten or avoid prison through later

compliance”]).

A finding of criminal contempt will be sustained where it is established that “a lawful

order of the court clearly expressing an unequivocal mandate was in effect”; the alleged

contemnor “had knowledge of the court’s order”; and “it must also appear with reasonable

certainty that the order has been disobeyed” (Dep’t of Env’t Prot. of City of New York, 70 NY2d

at 240). In addition, the disobedience must be shown to be “willful” (Rubackin, 62 AD3d at 15;

El-Dehdan, 114 AD3d at 15-16 [“‘willful’ in the criminal contempt statute, Judiciary Law §

750(A)(3), is best defined as ‘intentional.’”]). As criminal contempt proceedings may result in

incarceration “greater procedural protections apply, such as, inter alia, the right to have the

contempt proved beyond a reasonable doubt, and the right to the assistance of counsel” (New

York City Transit Auth., 35 AD3d at 86; Rubackin, 62 AD3d at 15 [criminal contempt finding

655761/2019 THE BOARD OF MANAGERS OF THE 7 METROTECH CONDOMINIUM vs. Page 4 of 6

DERUYTTER, WOUTER

Motion No. 002 003 004

4 of 6

[* 4]

FILED: NEW YORK COUNTY CLERK 05/06/2025 04:48 PM INDEX NO. 655761/2019

NYSCEF DOC. NO. 177 RECEIVED NYSCEF: 05/06/2025

requires “proof beyond a reasonable doubt that the contemnor willfully failed to obey an order of

the court”]).

Civil contempt is available where “a party to the action” is guilty of “disobedience to a

lawful mandate of the court” (see Judiciary Law § 753 [A][3]). The aim of civil contempt is “the

vindication of a private right of a party to litigation and any penalty imposed upon the contemnor

is designed to compensate the injured private party for the loss of or interference with that right”

(McCormick v Axelrod, 59 NY2d 574, 582-583 [1983]). In order for the court to find civil

contempt: (1) a lawful order of the court, which “clearly express[es] an unequivocal mandate,”

must be in effect; (2) the party sought to be held in contempt “must have had knowledge of the

court’s order”; (3) the alleged contemnor must have disobeyed the order; and (4) violation of the

order must have resulted in prejudice to the right of a party to the litigation (McCormick, 59

NY2d at 583 [civil contempt found where nursing home transferred residents in violation of

court order that expressed “clear mandate” staying all steps to involuntarily discharge residents

pending appeal]; v El-Dehdan, 114 AD3d at 16-17). “A motion to punish a party for civil

contempt is addressed to the sound discretion of the court, and the movant bears the burden of

proving the contempt by clear and convincing evidence” (El-Dehdan, 114 AD3d at 10).

Here, civil, but not criminal, contempt is appropriate. The Court’s August 2024 Order is a

lawful court order, expressing unequivocal mandates, that has been in full force and effect (see

NYSCEF Doc. Nos. 68 and 111), and it is undisputed that Mr. Deruytter had knowledge of the

August 2024 Order. In addition, the Board proved by clear and convincing evidence that Mr.

Deruytter disobeyed the August 2024 Order because Sands and his guests continue to remain

overnight in Unit 16PRO in direct violation of the August 2024 Order. However, criminal

contempt is not warranted at this time as the Board has not established, beyond a reasonable

doubt, that Mr. Deruytter’s disobedience was “willful.” Further, the Board has been prejudiced

by Mr. Deruytter’s violation of the August 2024 Order because several incidents, including those

requiring police intervention, stem from or involve the unauthorized guests potentially posing a

threat to those in the Building (Board of Managers of South Star v Grishanova, 117 AD3d 442

[1st Dept 2014] [court properly held defendant in contempt for violating TRO]).

Attorney’s Fees

The Court finds that the Board is entitled to reasonable counsel fees incurred in bringing

the contempt motions (Motion Seq. 003 and 004), as Mr. Deruytter’s conduct in violation of the

August 2024 Order caused the Board to incur such expenses (Judiciary Law § 773; Abrams v

Abrams, 227 AD3d 403 [1st Dept 2024] [“Pursuant to Judiciary Law § 773, a court may award

reasonable costs and expenses, including attorney fees, to an aggrieved party as a result of

contemptuous conduct”]; see also Matter of Gonnard v Guido, 141 AD3d 649, 650 [2d Dept

2016] [intent of Judiciary Law § 773 to indemnify aggrieved party for costs and expenses

incurred as result of contempt; attorney’s fees that are documented and directly related to

contemptuous conduct generally recoverable unless proven excessive or reduced by court in

reasoned decision]). The issue of the amount of reasonable attorney’s fees the Board is entitled to

recover is set down for an inquest on papers.

Accordingly, it is hereby

655761/2019 THE BOARD OF MANAGERS OF THE 7 METROTECH CONDOMINIUM vs. Page 5 of 6

DERUYTTER, WOUTER

Motion No. 002 003 004

5 of 6

[* 5]

FILED: NEW YORK COUNTY CLERK 05/06/2025 04:48 PM INDEX NO. 655761/2019

NYSCEF DOC. NO. 177 RECEIVED NYSCEF: 05/06/2025

ORDERED that plaintiff’s motion for a preliminary injunction is granted on the terms

set forth in the August 2024 Order; and it is further

ORDERED that Wouter Deruytter is restrained and enjoined from: permitting anyone to

sleep overnight in Unit 16PRO in the Building; creating a nuisance and/or source of annoyance

to the Building’s residents or interfering with the peaceful possession or proper use of the

Building by its residents or occupants by engaging in any objectionable conduct including, but

not limited to, causing excessive noise in the Units or the Building’s common areas, loitering in

the Building’s common areas, including the lobby, and/or banging on doors; disobeying,

threatening, harassing, and/or intimidating the Building’s staff, including but not limited to,

verbal abuse, threatening with weapons and/or causing physical harm in any way; and violating

the By-Laws, the Building’s Rules and Regulations, and applicable law; and it is further

ORDERED that plaintiff’s motion for an order holding Wouter Deruytter in criminal

contempt of the August 2024 Order, is denied without prejudice; and it is further

ORDERED that plaintiff’s motion for an order holding Wouter Deruytter in civil

contempt of the August 2024 Order, is granted; and it is further

ORDERED that plaintiff established that the August 2024 Order is a lawful order of the

Court expressing an unequivocal mandate which has been and remains in full force and effect,

that Wouter Deruytter had knowledge of the August 2024 Order, that Wouter Deruytter

disobeyed the August 2024 Order, and that his disobedience of the August 2024 Order

prejudiced plaintiff’s rights; and it is further

ORDERED that Wouter Deruytter failed to present any competent evidence establishing

a defense to his disobedience of the August 2024 Order, or tending to raise a question of fact on

such defense; and it is further

ORDERED that as punishment for said civil contempt, plaintiff is entitled to reasonable

attorney’s fees and costs it incurred in filing its contempt motions (Motion Seq. 003 and 004), as

determined by an inquest on the papers. Plaintiff shall file papers in support of its reasonable

attorney’s fees and costs via NYSCEF no later than June 30, 2025, and papers in opposition, if

any, shall be served via NYSCEF no later than July 14, 2025.

ORDERED that the court has considered the parties’ remaining contentions and finds

them unavailing.

5/6/2025

-/!_~~~,~~

DATE KATHLEEN WATERMAN-MARSHALL,

J.S.C.

□ ~ ~

CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

GRANTED DENIED X GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

655761/2019 THE BOARD OF MANAGERS OF THE 7 METROTECH CONDOMINIUM vs. Page 6 of 6

DERUYTTER, WOUTER

Motion No. 002 003 004

6 of 6

[* 6]