Although the owner of a unit in a commercial condominium was aware of the prohibition against parking on the premises, and her proprietary lease did not permit same,  she parked four cars on her premises for many years. When the Board of Directors enacted new house rules reaffirming that no unit owner had parking rights, the owner brought an Article 78 proceeding against the Board of Managers alleging that she had the right to park by virtue  of her proprietary lease, or alternatively by way of adverse possession or prescriptive easement. She also challenged several of the newly enacted house rules claiming they were ultra vires.Adam Leitman Bailey, P.C. moved on behalf of the Board of Managers to dismiss the petition and demonstrated to the Supreme Court how the owner’s arguments that she was entitled to park and that the house rules were ultra vires were meritless. The court agreed and dismissed the Article 78 proceeding with prejudice and without leave to replead.Notwithstanding the total repudiation of her claims, the owner continued to defiantly park cars in her space. The Board attempted to resolve the matter without further litigation by first sending the owner a Cease and Desist letter. The owner ignored it. The Board was thus forced to serve a Notice to Cure upon the owner notifying her that if she did not cure her breach of her proprietary lease, the Board would move to terminate her tenancy.Often times, commercial tenants, when served with a Notice of Cure will move before the Supreme Court for a Yellowstone injunction. If granted, the Notice to Cure is tolled until the Court determines whether the tenant is in breach and, if so, the tenant still retains the time to cure the breach and preserve the tenancy. A key element in obtaining such relief is a showing that, if found in breach, the tenant is ready, willing and able to cure the breach.

The  declaratory judgment action which accompanied the Yellowstone application went to the same judge who had decided the Article 78 proceeding adversely to the owner. Nonetheless, the owner’s papers did not address the prior Article 78 holding and continued to argue that the owner had the right to park cars in her demise.Adam Leitman Bailey, P.C. opposed the Yellowstone request and moved to both dismiss the complaint and sanctions due to the frivolous nature of the case. The Court agreed with our position and found that the owner was contemptuous and that her application was frivolous. In particular, the Court adopted our argument that the owner’s statement that she was ready, willing and able to cure was not made in good faith, as she had continued to flaunt the Article 78 order and had the audacity to continue to claim entitlement to the spaces. Thus, the Court not only denied the motion and dismissed the action, but additionally granted sanctions against the owner, requiring her to pay the attorneys’ fees incurred in opposing the Yellowstone and through the motion to dismiss.

John Desiderio and Jeffrey R. Metz represented the Board in the Article 78 proceeding and Jeffrey R. Metz represented the Board in the Yellowstone action.