# Alonso v. 401 E. 74 Owners Corp.

> New York Supreme Court, New York County · May 29, 2025 · 2025 NY Slip Op 31902(U)

URL: https://www.frixlaw.com/law-library/cases/11064207

## Case

- **Court:** New York Supreme Court, New York County
- **Decided:** May 29, 2025
- **Citations:** 2025 NY Slip Op 31902(U)
- **Precedential status:** Unpublished
- **Opinion:** Opinion by Richard Tsai
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Alonso v 401 E. 74 Owners Corp.
2025 NY Slip Op 31902(U)
May 29, 2025
Supreme Court, New York County
Docket Number: Index No. 158349/2018
Judge: Richard Tsai
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 05/30/2025 09:32 AM INDEX NO. 158349/2018
NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 05/29/2025

SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. RICHARD TSAI PART 21
Justice
---------------------------------------------------------------------------------X INDEX NO. 158349/2018
MARK J. ALONSO and
MARYANN SERRALLES ALONSO, MOTION DATE 05/29/2025

Plaintiffs, MOTION SEQ. NO. 004

-v-
DECISION + ORDER ON
401 EAST 74 OWNERS CORP.,
MOTION
Defendant.
---------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document numbers (Motion 004) 1, 135, 212, 213,
222-275
were read on this motion to/for REARGUMENT/RECONSIDERATION .

In this dispute between a cooperative corporation and one of its shareholders,
plaintiffs now move to reargue this court’s pretrial ruling, which denied plaintiffs’ oral
application to amend the complaint on the eve of trial, to include causes of action from
another action which were dismissed. Defendant opposes the motion.

BACKGROUND

Plaintiffs Mark J. Alonso and his wife, Maryann Seralles Alonso, are shareholders
of stock allocated and parties to proprietary leases to Apartments 12C and 12D in a
cooperative apartment building owned by defendant 401 E 74 Owners Corp. (Co-op).

On September 9, 2018, plaintiffs commenced this action against the Co-op,
seeking a judgment declaring that a notice to cure allegedly issued on October 21, 2018
by the Co-op is null and void (see NYSCEF Doc. No. 1, complaint ¶¶ 15, 28; see also
Plaintiffs’ Exhibit 1 in support of motion [NYSCEF Doc. No. 232]). The notice to cure
allegedly stated that plaintiffs were in default of their proprietary lease with defendant
because they have a washing machine, and the notice allegedly demanded that
plaintiffs remove their washing machine and complete remedial work on a ventilation
system (complaint ¶ 15). According to plaintiffs, they are not required to remove their
washing machine, based on defendant’s rules respecting “grandfathered” washing
machines (id. ¶ 17). Plaintiff also seek attorneys’ fees if they prevail (id. ¶¶ 29-31).

Meanwhile, on August 9, 2022, plaintiffs commenced a separate action against
the individuals who serve and/or served on the Co-op’s Board of Directors, Alonso v
Doherty, Index No. 156760/2022 (the Directors lawsuit). There, plaintiffs asserted two
causes of action of action against the directors for breach of fiduciary duty (see Co-op’s

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Exhibit 10 in opposition, Alonso v Doherty complaint [NYSCEF Doc. No. 262]). The
alleged breaches are based on the following:

“(a) misrepresenting the content and existence of the Corporation’s washing
machine policies, and, in 2022, the interpretation of a Corporation rule enacted in
September, 2010, relating to washers and dryers;

(b) starting in June, 2019, directing the Corporation to cease providing all services to
Plaintiffs and the Apartment except in case of dire emergencies, such as a flood
or fire;

(c) refusing to allow Plaintiffs to cure their alleged default(s) through submission of
an Alteration Agreement(s);

(d) restraining Plaintiffs’ alienation of their shares in the Corporation; and

(e) creating a rule unequally and specifically for Plaintiffs requiring an Alteration
Agreement for removal of a washing machine, which had never been required of
other shareholders removing washing machine” (id. ¶ 37).

The Co-op is not a defendant in the Directors lawsuit.

The individual directors brought a pre-answer motion to dismiss the Directors
lawsuit pursuant to CPLR 3211 (a) (4), among other grounds. Plaintiffs opposed the
motion, arguing that the Directors lawsuit and this action were not identical; that the
wrongs were completely distinct—that the breach of fiduciary duties occurred only after
the filing of the and during discovery in this action (see NYSCEF Doc. No. 39, memo of
law in opposition at 15-17, in Alonso v Doherty, Sup Ct, NY County, index no.
156760/2022).

By decision and order dated January 21, 2025, Justice Mary V. Rosado granted
the motion to dismiss the Directors lawsuit, based on a prior pending action (see Co-
op’s Exhibit 11 in opposition to motion [NYSCEF Doc. No. 242]).

The decision states, in relevant part,

“As the two actions arise out of the same facts, the same proprietary
lease, and the same determinations of the board, this action should be
dismissed pursuant to CPLR3211(a)(4). It is inconsequential that in this
action Plaintiffs allege breach of fiduciary duties while in the 2018 Action
they seek declaratory judgment. This is especially the case where the
declaratory judgment and breach of fiduciary duty claims are intertwined
and closely related legal theories, and determination of one will prove
conclusive of the other. Rather than burdening the Court with two
separate actions and numerous motions, the proper course of action
would have been to amend Plaintiffs' Complaint in the 2018 action to

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assert the alleged breach of fiduciary duties to streamline the litigation in
one action and before one judge. Therefore, Plaintiffs' Complaint is
dismissed pursuant to CPLR321l(a)(4)” (id. at 2-3 [internal citations
omitted]).

This court was assigned a non-jury trial of this action, and this court held a
pre-trial conference on January 3, 2025. Based on the parties’ availability, this
court scheduled the trial to commence on February 18, 2025.

On January 23, 2025, plaintiffs e-filed a letter informing this court of Justice
Rosado’s decision, and requesting a virtual conference to discuss “how best to proceed”
(see NYSCEF Doc. No. 212; see also Plaintiffs’ Exhibit A in support of motion [NYSCEF
Doc. No. 225]). Plaintiffs asserted that Justice Rosado’s decision “has implications for
our upcoming trial and the procedural posture of this action” (id.). Plaintiffs proposed
that this court:

(a) “could concur with Judge Rosado’s decision and confirm that the Coop’s refusal
to allow the Plaintiffs to cure and sell will be addressed within the Action”;
(b) “could grant leave to Plaintiff to formally amend the Complaint before trial to
incorporate causes of action and/or remedies underlying the Directors’ and the
Coop’s refusal to allow the Plaintiffs to cure and then sell their apartment”;
(c) “could grant leave to Plaintiff to formally amend the Complaint to add Plaintiffs’
claims regarding the Coop’s restraint of their apartment, and then sever them for
later trial by the Court, after whatever limited and expedited disclosure is deemed
appropriate by this Court” (id.).

By a letter dated and e-filed January 24, 2025, the Co-op asked the court “to
reject the proposals and suggestions outlined by plaintiffs’ counsel in their letter, dated
January 23, 2025” (NYSCEF Doc. No. 213; see also plaintiff’s Exhibit B in support of
motion [NYSCEF Doc. No. 226]).

On February 18, 2025, the first scheduled date of the trial, this court heard
plaintiffs’ application on the stenographic record (see Co-op’s Exhibit 15 in opposition
[NYSCEF Doc. No. 246]).

Plaintiffs’ counsel stated,

“I am not sure it's so much as an application. It's something that we
believe is an actual consequence of Judge Rosado's decision.
***
The hearing -- the testimony that we will present today would not change
at all. We will present the same testimony, the same evidence that we
would have had the fiduciary duty action not be dismissed. Nothing has
changed whatsoever. The only difference is the remedy that we -- the
additional remedy that we would be requesting that this Court render; that

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is simply damages and simply telling the co-op let them sell the apartment,
but the facts, the evidence, are identical.
***
So when I say it's not our application, we believe it's a natural
consequence of Judge Rosado's decision. There is nothing else this Court
could do, with all due respect. My client cannot be left without a remedy.
We are bound by Judge Rosado's decision, and we will ask the Court just
at the end of the trial to entertain those causes of action. Nothing else will
be different.
***
THE COURT: So to be clear, you are not seeking any kind of amendment
of the pleadings in this action?

MR. MINIKES: At the moment we are not because we are here ready to
proceed with the trial. I would ask the Court if the Court would accept an
oral application at this point, then the Court could rule on that application.
We obviously have not made a written application, so it would be my oral
application right now requesting the amendment, but again, we are not
seeking to change anything in terms of the pleadings other than to bring in
the relief; the damages and the injunctive relief that we were seeking in
that action that we believe this 4 Court has the authority to do” (tr. at 3,
line 11 through 5, line 7, line 17 through 8, line 4).

This court denied the application, stating:

“So this is an oral application for amendment to conform the pleadings to
the proof at trial is permissible under CPLR 3025, Subsection C. So it can
be made during the course of trial.

However, changing the pleadings to entirely new causes of action,
that can also be sought by a motion under CPLR 3025, Subdivision B, it is
just that the proposed pleadings have to be submitted to the Court to
review this, and the pleadings have to not be either by result of surprise or
prejudice, and the party opposing the amendment can argue that the
proposed pleading is plainly lacking the merit.

It sounds like what Counsel Margolis was arguing here this morning
that there was no duty that was owed -- no fiduciary duty owed by the co-
op to the shareholders. I am hearing that a little bit, but procedurally, to the
extent that the plaintiffs are making an oral application to conform the
pleadings to the proof, we have not started the trial yet. That will come
much later into the trial.

The application to conform the pleadings to the proof is denied. To
the extent that you are making an oral application to amend the pleadings
to assert other causes of action such as breach of fiduciary duty, that's

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also denied because this would be a significant change in the cause of
action that’s pled here.

The Court, in this action, as set forth in the summons and
complaint, the Court's issuing a declaratory judgment as to whether or not
the plaintiffs were in default for having a washing machine in their
apartment. So while the other things that happen with the co-op would
come out during the trial, the focus of the Court in this trial as it exist[s] in
the pleadings is whether the use of the washing machine in the apartment
constituted a violation of the proprietary lease or the house rules regarding
washing machines.

My concern has to do with the extent of damages for the breach of
fiduciary duty. Now, in the -- during the pretrial conference, which was not
on the stenographic record, the parties had indicated that -- actually the
plaintiffs had indicated that the potential realm of damages for breach of
fiduciary duty would possibly be in the millions; the co-op apartment is
now worth like $6 million and that the, you know, the loss of the
opportunity to sell the apartment at the time when the plaintiffs had sought
the co-op board approval, had hurt them because they would have been
able to sell the apartment at a much higher value at the time the co-op
board refused than our market conditions now.

Those kinds of evaluation of the amount of damages really requires
a lot of discovery that would never have taken place just determining
whether or not the washing machine was permitted under the co-op board.

I don't see how it would be fair to the defendants to have to defend
on that without knowing how your experts even arrived at the number or
seeing the difference with the market conditions. That being said, it was
the defendants who had argued that the lawsuit should be dismissed
based on prior pending action. So I agree on some level with the plaintiffs
that the defendants should not complain for the application that they would
be judicially estopped to argue that the action would be fundamentally
different from what they had argued in front of Judge Rosado because the
defendants obtained a judgment in their favor based on a p[os]ition that
they may have taken in front of Judge Rosado.

With that being said, I don't have to permit the amendment. The
amendment is going to significantly enlarge the case in terms of the
damages. Now under prior pending action, the parties do not have to be
identical, there has to be a substantial overlap for the Court to determine
that in the case.

I am surprised by the ruling. I am frankly surprised by the ruling,
and the parties have to live with that ruling. But I am not going to permit an

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oral amendment of the pleadings to allege the causes of that action that
were part of the fiduciary duty action” (id. at 18, line 12 through 21, line
17).
DISCUSSION

Plaintiffs argue that Judge Rosado’s decision in the Directors lawsuit that the two
actions were identical constituted law of the case that this court was bound to follow.
Additionally, they maintain that an earlier decision on a discovery motion in this case by
Justice Barbara Jaffe constitutes law of the case. Finally, plaintiffs assert that this court
should have rejected the Co-op’s arguments in opposition to the application, because
the Co-op should have been judicially estopped from arguing that this case involved no
facts other than as to the default itself.

Reargument is denied. The court did not overlook or misapprehend any facts or
law.

As a threshold matter, plaintiffs assert that the court misconstrued plaintiffs’ prior
application as an application for leave to amend the complaint. They appear to argue
that their prior application was not for leave to amend their complaint, because “they
never should have had to move to amend; this Court should have followed Judge
Rosado’s order (and a prior order in this case by Judge Jaffee) and ordered a trial of all
the issues and remedies” (Plaintiff’s memo of law at 7 [NYSCEF Doc. No. 250]).

First, this court understood plaintiffs’ application as seeking leave to amend
because plaintiffs’ application clearly suggested that this court grant plaintiffs “leave to
Plaintiff to formally amend the Complaint before trial to incorporate causes of action
and/or remedies underlying the Directors’ and the Coop’s refusal to allow the Plaintiffs
to cure and then sell their apartment” and for “leave to Plaintiff to formally amend the
Complaint to add Plaintiffs’ claims regarding the Coop’s restraint of their apartment”
(NYSCEF Doc. No. 212 [emphasis added]).

Obviously, the parties in the Directors lawsuit are not parties in this action, and
the monetary relief that plaintiffs were seeking for breach of fiduciary duty in the
Directors lawsuits was not sought in this action. So in order to grant plaintiffs the relief
that the plaintiffs seek, the complaint must be amended. Thus, this court reviewed
plaintiffs’ application under the standards for granting leave to amend under CPLR
3025.

As this court pointed out when plaintiffs’ application was denied, no proposed
pleading was submitted when plaintiffs made the oral application to amend the
complaint, in violation of CPLR 3025 (b) (tr. at 18, lines 19-21). Even on this motion,
plaintiffs have not submitted any proposed amended pleading, “clearly showing the
changes or additions to be made to the pleading” (CPLR 3025 [b]). Because the
application was procedurally defective, leave to amend the complaint pursuant to CPLR
3025 (b) cannot be granted.

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On the merits, leave to amend could not have been granted. As this court had
ruled, amendment on the eve of trial would be prejudicial to the Co-op. “[W]here, as
here, the proposed amendment inserts a new theory of liability into the case on the eve
of trial, it is clear that undue prejudice will result to the defendant” (Evans v Kringstein,
193 AD2d 714, 715 [2d Dept 1993]). There was no discovery as to the factual basis for
the calculation of the measure of plaintiffs’ damages for two causes of breach of
fiduciary duty asserted in the Directors’ lawsuit.

The court agrees with plaintiffs that, having obtained dismissal of the Directors
lawsuit on the ground that the Directors lawsuit was sufficiently identical to this action to
warrant dismissal pursuant to CPLR 3211 (a) (4), the Co-op’s directors1 would be
judicially estopped from arguing that the Directors lawsuit is not identical to this action
(see Gale P. Elston, P.C. v Dubois, 18 AD3d 301, 303 [1st Dept 2005] [the doctrine of
judicial estoppel “precludes a party who assumed a certain position in a prior legal
proceeding and who secured a judgment in his or her favor from assuming a contrary
position in another action simply because his or her interests have changed]).

However, the Co-op would not be judicially estopped from opposing leave to
amend on the ground that the proposed amendment would be patently meritless, which
is an argument that is separate from, and not contrary to, the argument that the two
lawsuits are identical. The Co-op had vigorously opposed the oral application on the
ground that a cause of action for breach of fiduciary duty against the Co-op would be
patently meritless, and this court agrees. “[T]he corporation itself does not owe a
shareholder a fiduciary duty” (Suber v Churchill, 228 AD3d 414, 415 [1st Dept 2024],
citing Peacock v Herald Sq. Loft Corp., 67 AD3d 442, 443 [1st Dept 2009]).

To the extent that plaintiffs’ letter had asked this court to “confirm that the Coop’s
refusal to . . . sell [plaintiffs’ apartment] will be addressed” in this action, this court
granted the relief for clarification, by confirming that the Coop’s refusal to permit
plaintiffs to sell their apartment was not part of this action. At issue in this action is
whether the grounds stated in a purported notice to cure were, in fact, true. That is,
whether plaintiffs were in default of their obligations in their proprietary lease because
(1) they had an unauthorized washing machine in their co-op apartment, and (2) they
failed to seal and restore the fire proof integrity of an exhaust stack.

As this court had explained when the application was denied, the Co-op’s alleged
refusal to grant plaintiffs permission to sell their apartment is not a necessary element in
determining the validity of either ground set forth in the purported notice to cure.
Neither is the alleged refusal of permission to sell an element of any defense to the
purported notice to cure.

A common fact between this action and the Directors lawsuit is the purported
notice to cure, which was a predicate notice to termination of the plaintiffs’ proprietary

1
The Co-op was not a party to the Directors lawsuit; the argument of prior pending action was
raised by the individual directors of the Co-op. On this motion, plaintiffs make no distinction
between the Co-op and its individual directors for applicability of the doctrine of judicial estoppel.
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lease. Another common issue appears to be whether the Co-op should have repaired
the hole in the ventilation stack (compare complaint ¶ 19 [“Plaintiffs do not have the
obligation to perform remedial work on the ventilation system”] with complaint ¶¶ 22-25
in Alonso v Doherty [“Under the Proprietary Lease, the Corporation has the right and
obligation to enter a tenant’s apartment to perform any structural repairs necessary”]).

However, plaintiffs’ counsel conceded that, if plaintiffs were to lose this case,
plaintiffs could still have a viable cause of action against the Co-op for its refusal to let
plaintiffs sell the apartment even if they were unable to cure their defaults, had the
Directors lawsuit not been dismissed (tr. at 25, lines 3-6). Thus, this action might not
have disposed of all of the alleged breaches of fiduciary duty in the Directors lawsuit.2

Although plaintiffs creatively argue that amendment was unnecessary because
the causes of action of Directors lawsuit were subsumed into this lawsuit by operation of
law (plaintiffs’ memo of law at 7, 10 n 1), this argument fails.

A dismissal of an action on the ground of another prior pending action does not
cause that prior action to subsume automatically the causes of action and allegations of
the dismissed action. The flaw in plaintiffs’ argument is illustrated by the fact that
dismissal based on a prior pending action could be based on action pending in another
state or in federal court. It is procedurally impossible that dismissal of an action
necessarily causes the action pending in another jurisdiction to subsume anything from
the dismissed action.

On its face, Justice Rosado’s decision expressly dismissed the Directors lawsuit;
it did not order consolidation of the Directors lawsuit with this action. Dismissal of the
causes of action in the Directors lawsuit on the grounds of prior pending action does not
automatically result in any consolidation of the Director lawsuit with this action, or any
amendment of the complaint in this action. A priori, such relief would not be necessary
at all. If the parties and causes of action in Directors lawsuit were completely identical
to the parties and causes of action here, there would be no need for consolidation or for
amendment of the complaint in this action.

Plaintiffs’ argument that Justice Rosado’s decision constitutes law of the case in
this action is without merit. As defendant points out, the law of the case doctrine does
not apply here because “it applies to various stages of the same litigation and not to
different litigations” (McGrath v Gold, 36 NY2d 406, 413 [1975] [emphasis added]).
Justice Rosado’s decision in the Director’s lawsuit was under a different index number,
not in this action. Thus, a priori, Justice Rosado’s decision was not in the same
litigation.

2
In such a situation, “the court need not dismiss upon this ground but may make such order as
justice requires” (CPLR 3211 [a] [4]), such as a granting stay of the second action pending the
outcome of the first action, or consolidation of the two actions (see John R. Higgitt, Supp Prac
Commentaries, McKinney’s Cons Laws of NY, CPLR C3211:17)

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Plaintiffs’ reliance upon Padela v Rosen & Weidlberg (200 AD2d 722 [2d Dept
1994]) and Glynwill Invs., N.V. v Shearson Lehman Hutton, Inc. (216 AD2d 78 [1st Dept
1995]) is misplaced. There, a justice of the Supreme Court, Nassau County denied a
motion for a change of venue and joint trial with an action pending in Supreme Court,
Suffolk County. Thereafter, the defendants in the action in Supreme Court, Suffolk
County, brought an identical motion for a change of venue and consolidation/joint trial,
which was denied on the ground that the denial of the motion in the Nassau County
action constituted law of the case in the action pending in Suffolk County. On appeal,
the Appellate Division, Second Department ruled that the justice in Suffolk County
corrected denied the motion on the ground of law of the case, but nevertheless reversed
the motion court, reasoning that a joint trial of the actions was warranted.

Here, unlike Padela, this is not a situation where a motion that was made and
decided in the Directors lawsuit is now being made in this action. By way of illustration,
it is not as if defendants had moved for a joint trial or consolidation of the Directors
lawsuit,3 and then the Co-op (or even the plaintiffs) sought identical relief in this action.
Glynwill is apparently involved a determination made in the same lawsuit—law of the
case was applied to the determination of the justice who was previously rendered a
determination in the same case.

Plaintiffs’ argument that Justice Jaffe’s prior decision in this case constitutes law
of the case was not raised when plaintiffs made the oral application. “Reargument is
not designed . . . to present arguments different from those originally asserted” (William
P. Pahl Equip. Corp. v Kassis, 182 AD2d 22, 27 [1st Dept 1992] [internal quotation
marks and citations omitted]).

In any event, Justice Jaffe’s prior decision does not constitute law of the case.
As plaintiffs themselves acknowledge, the doctrine of law of the case “applies only to
legal determinations that were necessarily resolved on the merits in [a] prior decision’”
(HSBC Bank USA, N.A., 202 AD3d 1065, 1068 [2d Dept 2022]).

By decision and order dated November 22, 2021, Justice Jaffe granted plaintiffs’
discovery motion to compel the Co-op “to provide plaintiffs with any alteration
agreements submitted by other shareholders in the building since 1995 and related to
washing machines and/or dryers” (see NYSCEF Doc. No. 135). Justice Jaffe reasoned
that plaintiffs were entitled to such discovery because the discovery was related to
“plaintiffs’ claim that the building has engaged in bad faith toward them by imposing a
more onerous requirement on them than others” (id. at 4). Thus, Justice Jaffe did not
make a legal determination that the Co-op had engaged in bad faith, or that the Co-op
had imposed a more onerous requirement on plaintiffs than others. Justice Jaffe merely
reasoned that the discovery sought was relevant to such contentions.

Even assuming, for the sake of argument that Justice Jaffe made a legal ruling
that “bad faith” was part of this action, it does not follow that plaintiffs were asserting a

3
Neither did plaintiffs ever move to consolidate the Directors lawsuit with this action.
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claim for breach of fiduciary duty, or that plaintiffs were seeking monetary damages for
the claims of bad faith, as opposed to proving bad faith as a defense to the validity of
the purported notice to cure. The complaint in this action seeks monetary damages
only for attorneys’ fees.

The court has considered plaintiffs’ remaining arguments and finds them
unavailing. Plaintiffs’ request for clarification so as to “advise Judge Rosado of those
portions of the claim which she should take back” is improperly raised for the first time in
reply (see plaintiffs’ reply memo of law at 4 [NYSCEF Doc. 275]).

The branch of plaintiffs’ motion for a stay of the trial pending the determination of
this motion is denied as academic. This motion was decided before the next scheduled
date of the continued trial.

CONCLUSION & ORDER

Accordingly, it is hereby ORDERED that plaintiffs’ motion to reargue this court’s
pre-trial ruling on plaintiffs’ application and for a stay of the trial is DENIED.

20250529183559RTS~841AF6E2ECD8C66A724

5/29/2025
DATE RICHARD TSAI, J.S.C.
CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

□ □
GRANTED X DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

□
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11064207. Public record. Not legal advice.