Embed Size (px)
Citation preview
if!F" \ KUDER ISLAND COLONY, INC.
P.O. Box 766 Rye, New York 10580
October 31.2014
Mayor Joe Sack and Rye City Council Rye City Hall I 051 Boston Post Road Rye, NY I 0580
Re: Hen Island Litigation
Dear Mayor Sack and City Council,
In May, 2007, before commencing his numerous complaints to the Health Department, Mr. Tartaglione had brought a lawsuit in Supreme Court, Westchester County against Kuder Island and its directors personally, asking the Court to require the Board to implement certain measures on Kuder Island with respect to drinking water, sewage, and mosquito control. (Tartaglione v. Kuder Island Colony, Inc., et al., Supreme Court, Westchester County, Index No. 2007/9752.) The lawsuit was successfully defended by Kuder with the results summarized below:
I. On January 16, 2008, Judge Orazio Bellantoni dismissed Mr. Tartaglione's case on various grounds, including that the County Health Department had found no merit to Mr. Tartaglione's water, sewage and mosquito concerns (A).
2. Mr. Tartaglione reargued that decision, but in an order on September 23, 2008 Judge Bellantoni adhered to his prior decision (B), and on December I, 2008 issued a judgment to that effect (C).
3. That judgment was affirmed by the Appellate Division on April 20, 2010 (Tartaglione v Kuder Island Colony, 72 AD3d 933) (D).
4. Mr. Tartaglione also tried to renew his motion before Judge Bellantoni by providing the Court with additional information he deemed relevant to the issues. Judge Bellantoni denied that motion on June 2, 2009. (E)
5. That determination was also affirmed by the Appellate Division on April 20, 2010 (Tartaglione v Kuder lriland Colony, 73 AD3d 935) (F).
6. On January 16, 2008, the Supreme Court (0. Bellantoni, J.) dismissed the complaint on among other grounds, that the Westchester County Health Department had found Mr. Tartaglione's claims to be without merit.
The courts and the municipalities having jurisdiction over these matters have agreed that the claims made against Hen Island are without merit. Please contact us if you require further information.
Sincerely,
Board of Directors Kuder Island Colony Inc.
cc: Mr. Frank Culross - Rye City Manager Ms. Kristen Wilson- Harris Beech PLLC
C \Users\Gary SOUTIIEASTIDocuments\Dropbox\Hen Island Shared\Cuy Council Response Package 2014\0rgam7.cd Package\0.:) ·Kuder Island Cover Letter for Cny Council Response Package 2 • Litigation. doc
Exh.ibit ''A''
· ..
Exhibit "A''
SU?REME COURT OF THE STATE OF NEW YORK COUNTY OF \'/ESTCHESTF.R
P R E S E N T:
HON. ORAZiO R. BELLANTONi JUSTICE OF THE SUPREME COURT
RAYMOND TARTAGLIONE, individually and as a shareholder of KUDER ISLAND COLONY, INC. suing on behalf of himself and on behalf of all the shareholders thereof similarly situated,
'l'o !:orrmer.c« rh~ statutory ~ i• •· pr.riod ((or oli'P•li>lt. dll or I i<rir· (C:PLR 'jSlJ !all. vou ore adv1sed to serve a copy ot this ord~r. with nolice ot entry. upon a:! PArti~s.
F~~~~ &:_,.. ENTERED
~2008
WESTCHESTER COUNTY
CLERK
Plaintiff, SHORT FORM ORDER Index No. 9752/07 Motion Date: 8/1/07
- against -
KUDER ISLAND COLONY, INC., HEN MlNARlJ, in his individual capacity and as president of KUDER ISLAND COLONY, INC., JASON ANDERSON, in his individual capacity and as vice-president of KUDER ISLAND COLONY, INC., JOANN MOLLOY, in her individual capacity and as Lreasurer of KUDER ISLAND COLONY, INC., MARTIN EDERER, in his individual capacity and as secreLary of KUDER ISLAND COLONY, INC., r.ORRAINE VOLPE, in her individual capacity, as director and as past p=esident of KUDER TSLAND COf,QNY, INC., MARGARET JOHNSON, in her individual capacity and as director of KUDER ISLAND COLONY, INC., and HELEN CUNNINGHAM, in her individual capacity and as director of KUDER ISLAND COLONY, INC.,
Defendants.
Plaintiff moves for an order directing defendants to comply with the applicable law, the license agreements, and the rules and regulations of Kuder Island Colony, Inc. to (a) ensure and enforce compliance by all shar~holders-licensees with the potahle drinkir1g water requirements of the Westchester County Sanitary Code; (b) ensure and enforce compliance by all shareholdcrslicennces with the discharge of sewerage and drain water requirements of the Westchester County Sanitary Code; (cl repeal the rece:1tly enac-.:ed ban on insect and mosquiLo spraying and retain a licensed contractor to obtain the requisite permits to
allow proper, appropriate and lawful mosquito control on Hen Island; and (d) maintain a lo'.-1 grass height. on al 1 grass areas to avoid harbora9e and resting areas for the adult mosquito as well as maintain a level degree of inclination of the contours of the land so as to avoid breeding sites for the Culex species (the West Nile Virus Carrier) .
Defendants cross-move for an order, pursuant to CPLR 3211 (n) (7). dismissing the complttint; pursuant t.o CPLR 3211 (c), granting summary judgment; vacating the temporary restraining order issued by this Court on May 31, 2007 that directed crossmovants to create and implemP.nt a mosquito control program and maintain a low grass height on the grounds that same has now beew complied with and/or is moot; and granting costs. disbursements and reasonable attorney fee~ in bringing this motion.
The following papers were read:
Order to Show Cause - Affirmation of Steven H. Gai::1es, Esq. 1-21 - Affidavi~ of Raymond Tartaglione - Affidavit of William Canavan - Affidavit of Wallace Terrill - Annexed Exhibits A-P Plaintiff's Memorandum of Law in Support 2:l Not.i.ce of Cross-Motion - Affirmation of !ra S. 23 4'l Go1denberg, Esq. - Affidavit of Luuaine Volpe - Affidavit of Joann Locascio Molloy - Affidavit of Margaret Johnson
Aff~davit of Martin Ederer - Affidavit of Adrienne Esposito - Affidavit of W. Charles Utschi.g, Jr. - Annexed Exhibits 1-15 Defendants' Memorandum of Law Affidavit of Raymond Tartaglione - Affjrmation of Steven H. Gaines, Esq. - Reply Affidavit of William Canavan - Reply Affidavit of Wallace Terrill - Affidavit of Claudio Iodice - Annexed Exhibits A-G Plaintiff's Reply Memorandum of Law Reply Affidavit of Lorraine Volpe - Reply Affidavit of Benjamin Minard - Annexed Exhibits A-C Defendants • Reply Memorandwn of Ldw August 31, ?.007 Letter of Leonard S. Y.eyerson, P.E. September 25. 2007 Letter of Leonard S. Meyerson, P.E.
46 47-58
!:;,9
60--64
65 66 67
Upon the foregoing papers it is hereby ORDERED that defendants' cross-motion is granted and plaintitt•s motion is denied as moot.
The Westchester County Department of Health issued a heal~h advisory to Kuder Island Colony, Inc. See the August 31, 2007 letter of Leonard S. Meyerson, P.E., Deputy Commissioner, Division of Environmental Health. While noting that "several residences on Hen Island have constructed cisterns to collect water from precipitation and that some of the cisterns have been
2
' r connected to sink faucets" (id), the County does not have any regulations prohibiting this practice. Said advisory furthe~ states that "[a]lthough our interviews with and observations of residents indicated that cistern water is not being used as a sourc0 of potable water, as a precaution we are asking that Kuder Island Colony: 1. remind all residents of Hen Island that consumption of thi~ stored water may be hazardous to health and any use of such water for drinking should be discontinued; an6 2. arrange to have a copy of the enclosed warning notice visibly posted above any faucets conveying such water." Id. Followinq department representatives' personal investigation of condiLiuns on the island, however, same had no other concerns as to potable water.
Moreover, the sewer disposal systems on the island pre-exist the County's Sanitary Code. As such, said systems are violative of the Code only if they seep or overflow. See the September /.5, 2007 letter of Leonard S. Meyerson, P.E., Deputy Commissioner, Division of Environmental Health. With respect to sa~e. the Health Department's position is that the existing systems on the island do not show any signs of failure, and that the present system is adequate, given the soil on the island, the use of the island for only part of the year, che limited number of islanders actually occupying it and the brevity of their visits. Id. It is Health Department policy not to require a sewage system to be rebuilt or abandoned unless there has been a total, irredeemable failure, which has not been found here.
Finally, as to the methods of deterring West Nile Virus by controlling r.he Culex mosquito, the Health Department stated that it is unnecessary to do so as said mosquito does not generally breed in salt water marshes as are found around the island. Id. Based upon Health Department inspections conducted on July 17, August 7, and August 27, 2007, "[t]he mosquito species that breeds [on the island] i:.=; predominanLly ochlerotatus sollicitans. and 1r1hile they are a nuisance to humans, the species is part: of the natural eco-system in salt marshes and has not been a:.=;sociated with the spread of West Nile virus and, thus, is no~ the focus of the Health Department's attention." :::d. "[T)he failure to abate the mosquito population present at Hen Island is not a vi..olation of [the Westchester County] Sanitary Code[, specifically the 'elimination' clause o( §873.831(7)]. In order to limit further mosquito breeding, the Department typically advises that the ope~ containment of stagnant ponded water be avoided." Id.
This Court notes that no other shareholde~. including the members of p:aintiff's 'beautification committee, • have expreszed ony objections to t:he mosquito control and mowing plans put in place since the issuance of the May 31, 2007 temporary restraining ord~r.
3
Acr.ordingly, the complaint is dismissed in its entirety.
Settle judgment on ten (10) days notice wi~hin thirty (30) days hereof.
Dated: a~~ J5 1 :l_o~~ ~ite Pl~ns, New York
BELLANTONI Justice of the Supreme Court
Gaines, Gruner, Ponzini & Novick, T,LP Attorneys for Plaintiff One North Broadway, 12Lh Floor White Plains, New York 10601
Hoffman, Wachtel!, Koster, Maier, Rao & Goldenberg, LLP Attorneys for Defendants 399 Knollwood Road, Suite 112 White Plains, New York 10603
4
Exhibit ''B''
~ \
Exhibit 11811
" ~·.
SUPREME COURT OF THE STA'rE OF NEW YORK COUNTY OF WESTCHESTER
P R E S E N T:
HON. ORAZIO R. BELLANTONI JUSTICE OF THE SUPREME COURT
RAYMOND 'rAH.'rAGLIONE, individually and as a shareholder of KUDER ISLAND COLONY, INC. suing on behalf of himself and on behalf of all the shareholders thereof similarly situated,
'Io corrnence the statutory tune period foe appeals as of ri!Jht (CPLR 5513[aJ), you arc advised to serve a copy o( this order. with ~ottco of ~:ulry, upon 411 parties.
FILED & ENTERED
q(.) 2 2008
WESTCHESTER COUNTY CLERK
Plaintiff, SHORT FORM ORDER Index ~o. 9752/07 Motion DaLe: 5/21/08
- against -
KUDER ISLAND COLONY, INC., BEN MINARD, in his individual capacily and as president of KUDER ISLAND COLONY, INC., JASON ANDERSON, in his individual capacity and as vice-president of KUDER ISLAND COLONY, INC., JOANN MOLLOY, in her individual capacity and as treasurer of KUD~R ISLAND COLONY, INC., MARTIN EDERER, in his individual capacity and az secretary of KUDER ISLAND COLONY, INC., LORRAINE VOLPE, in her individual capacity, as director and as past president of KUDER TST,AND COLONY, INC., MARGARET JOHNSON, in her individual capacity and as director of KUDF.R ISLAND COLONY. INC., and HELEN CUNNINGHAM, in her individual capacity and as director of KUDER ISLAND COLONY, INC.,
Defendants.
Plaintiff moves for an order, pursuant to CPLR 222l(d), granting leave to reargue defendants' cross-motion which sought, inter alia, dismissal of the complaint pursuant to CPLR 32ll(a) (7) and summary judgment pursuant to CPLR 32ll(c), and upon such reargument, denying defendants' cross-motion in its entirety.
Defendants cross-move for an order, pursuant to 22 NYCRR 130-1.1, imposing sanctions on plaintiff and his attorney for the frivolous motion to reargue, and pursuant to 22 NYCRR 130-l.l(b),
CPLR 8101 and 830l(a), awarding expenses, costs, disbursements a~d reasonable attorney fees incurred in connection with the reargument motion.
The following papers were read:
Notice of Motion - Affirmation in Support of Steven H. 1-13 Gaines, Esq. - Annexed Exhibits A-K NoticP. of Cross-Motion - Affirmation of Ira S. 14-18 Goldenberg, Esq. - Annexed Exhibits 1-2 - Memorandum of Law Reply Affirmation in Further Support of Steven H. 19-21 Gaines, Esq. - Reply Affidavit in Further Support of Raymond Tartaglione - Annexed Exhibit A
Upon the foregoing papers it is hereby ORDERED that plaintiff's motion to reargue is granted, and upon reargument the Court adheres to its original determination entered January 16, 2008. Plaintiff has failed to "establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law." See Pro Brokerage. Inc. v Home Insurance Co., 99 AV2d 971 (Pt Dept 1984) quoting Poley v Roche, 68 AD2d 558, 567 (l"t Dept 1979).
It is hereby further ORDERED that defendants' cross-motion is denied in its entirety. Neither defendants nor their counsel's conduct was frivolous as defined in 22 NYCRR §130-1.1.
Dated: j ___ -f: L .. .2".~~~~~ ~~s. New York
Gaines, Gruner, Ponzini & Novick, LLP Attorneys for Plaintiff One North Broadway, 12th Floor White Plains, New York 10601
of the Supreme Court
Hoffman, Wachtel!, Koster, Maier, Rao & Goldenberg, LLP Attorneys for Defendants 399 Knollwood Road, Suite 112 White Plains, New York 10603
2
Exhibit ''C'' ·
Exhibit '1C"
1 ...... ,,.:~ .. ;. ·._.
. ..
.
(
. ... ·. ···, .. ~·· ~ . -· .. _, ...... ~ ...
S~REMB COURT OF 1HE STATE OF NEW YORK COUNTY OF WESTCHESTER --~--------~-.;_--------------------------------------------x Hon. ()razfo ·R. SeJiantonJ. J.s.c . RAYMOND TARTAGLIONE, individually and as a .
.I
shareholder of KUDER ISLAND COLONY, INC., suing on behalf of himself and on behalf of all 'the shareholders thereof similarly si~ted,
Pl~
-against-
KUDER ISLAND COLONY, INC., BEN MINARD, in his individual capacity and as president of KUDER ISLAND COLONY, INC., capacity and as vicepresident of Kuder Island Colony, Inc., JOANN MOLLOY, in her individual capacity and as treasurer of KUDER ISLAND COLONY, INC., MARTIN . EDERER, in his :hidividual capacity and as secretary of KUDER ISLAND COLONY, INC., LORRAINE VOL})E, in her individual capacity, as director and as past president of KUDER ISLAND COLONY, INC., MARGARET JOHNSON, in her individual capacity and as director of KUDER ISLAND COLONY, INC., and HELEN CUNNINGHAM, in her individual capacity and as director of KUDER ISLAND COLONY, INC.,
DefendantS. ·
-----·WM·--------------·---------------------------...W--·-------!------JC
PRESENT: BON. ORAZIO R. BELLANTONI
JUSTICE OF THE SUPREME COURT ~ .
JUDGMENT AND ORDER Index No.: 9752/2007
....
.. ON READING AND FILING the following: The complaint herein, verified on
May 2~; 2007, which demanded judgment in favor of Plaintiff and against the Defendants
compelling them to specifically perform certain corporate obligations as alleged by
Plaintiff, for reimbursement, and for expenses, costs, disbursements. and reasonable
. attorney fees of Plaintiff;
('·'
,.._.,. . . r
-~ -····---- .. ·····-·-~·-- ----·--·- ........ -. ..,-.... - .. ·--· .. ··------·-- ···-·---------..··-----.. ··-·· ..... ~~
The Order to Show Cause of Plaintiff, which sought an order directing .
Defendants to comply with the applicable law, the license agreement, and the rules and
regulations of Kuder Island Colony, Inc., to (a) ensure and enforce compliance by· all
shareholders-licensees with the potable drinking water requirements of the Westchester
County Sanitary Code, (b) ensure and enforce compliance by all shareholders-licensees
with the discharge. of sewage and drain water requirement of the \Vestches~ County ...
Sanitary Code, (c) repeal the recently enacted ban on insect and mosquito spraying and
retain a licensed contractor to obtain the requisite permits to allow proper, appropriate,
and lawful mosquito '?ontrol on ·~en Island, and (d) maintain ~ low grass height on all . ·.
grass are~ to avoid harborage and resting areas for the adult mosquito so as to avoid
breeding sites for the Culex species (the West Nile Virus canier); to which Order to I
' Show Cause were annexed the affinnation of Steven H. Gaines, affinned on May 23,
2007, the affidavit of Raymond Tartaglione, sworn to on May 23, 2007, the affidavit of.
William Canavan, sworn to on May 23,2007, the affidavit of Wallace Terrill, swomto
on May 23, 2007, Exhibits "A" through ''P," annexed thereto, and Plaintiff's
memorandum of law in support of the ·Order to Show Cause;
The Notice of Cross-Motion of the defendants, dated June 26,2007, which sought
a) an Order pursuant to CPLR 321l(a)(7) dismissing the complaint against all defendants,·
b) an Order pursuant to CPLR 321l(c) granting summary judgment in favor of the
Defendants and against the Plaintiff, c) an Order vacating the Temporary Restraining
Order issued by this Court on May 31, 2007, that directed the Defendants to create and
implement a mosquito control program and maintain a low grass height, on the grounds
-------~-·--···--·---- ---- -------------------
..
i
I ~
I
---~ ... ~--- ----··----·--··· ·--·-~------··-··---·--~--.......-·-·"-
that the Oider was complied with or was moot, and d) an Order granting to the
Defendants their costs, disbursements and reasonable attorney fees in bringing this
motion, together with such other relief as may be just and proper; to which Cross-Motion
was annexed the.affirma~on of Ira S. Goldenberg, Esq., affinned on June 26, 2007, the
affidavit of Lorraine Volpe, sworn to on June 21, 2007, the affidavit of Joan Loc&Scio
Molloy, sworn to on June 21, 2007, the affidavit of Margaret Johnson, sworn to onJune
26, 2007, the affidavit of Martin Ederer, sworn to on June 26, 2007, the affidavit of
Adrianne Esposito, sworn to on June 25, 2007, the affidavit of W. Charles Utschig, Jr.,..
swom to on June 25, 2007, Exhibits "1, through "15,, annexed thereto, and Defendants'
Memorandum of Law in support of the Cross-Motion;
The Reply affidavit of Raymond Tartaglione, sworn to on July 23, 2007, the·
A:ffumation in Reply and in Opposition to Cross-Motion of Steven H. Gaines, Esq., '
affirmed on July 20, 2007, the Reply Affidavit of William Canavan, sworn to on July 20,
2007, the Reply Affidavit of Wallace Terrill, sworn to on July 20, 2007, the Affidavit of
Claudio Iodice, sworn to on July 20, 2007, Exhibits "A" tbrougb .. "G," thereto, and
"'Plaintiff's Reply Memoran~ of Law in Support of Motion and in Opposition to
Cross-Motion;"
The Reply Affidavit in support of Cross-Motion of Lorraine Volpe, sworn to on
July 31, 2007, the Reply Affidavit in support of Cross-Motion of Benjamin Minard,
sworn to on July 27, 2007, Exhibits "A"through "C,'' attached thereto, and .. Defendants'
3
iQ~ ! ~.(.,. I ....l· I
• I ·----
Memorandum of Law in Reply on their Cross-Motion to _vaca~ the Temporary
Restraining Order, Dismiss the Complaint and Grant Smnmary Judgment;"
Correspondence dated August 31, 2007, from Leonard S. Myerson, P.E., Deputy
. COmmissioner, Division of Environmental Health, Westchester County Department. of ·
Health, addressed to Ben Mi~~ President, Kuder Island Colony! Inc.; and,
Correspondence dated September 25, 2007, from Leonard S. Myerson, P.E.,
Deputy Commissioner, Division of Environmental Health, Westchester County
Department of Health, addressed to Ray Tartaglione;
IT IS ORDERED that Defendants' Cross-Motion is ~ted in all respects and
the Plaintiff's motion is denied as moot; it is further.
ORDERED that the Temporary Restraining Order issued by this Court on May
31, 2007, that directed the defendants to create and implement a mosquito control
program and maintain a low grass height is hereby vacated; and it is further
ORDERED that judgment be entered dismissing the complamt in all f1?Spects
pursuant to CPLR 3211(a)(7), granting S\DIUIUlJ'Y judgment in favor of the Defendants
and against the Plaintiff pursuant to CPLR 32ll(c), and granting to the Defendants costs of. -i50.50,
taxed in the swn of $300.00, plus disbursementsl\-ia;ludiDSJ· mil re!Hieaable attehl&J foes
of$6', ns~. making in all the Su.m of~~~;i~~-
4
...
_ ........... -~··~·..-...--- .. -------~---.--~--------....-
) .. : ·' . 44 I
.. , _____ _:__:___ _____ __:__ __ . --- .
5
-· ---~----------
.__~ HON RAZIO R. BELLANTONIJusti of the Supreme Court
QAAZtO R. BELLANTONI SUPftEME COURT.Jt.JSncE
- -~ld
...
•
Exhibit ''D''
. Exhibit "D"
J !
r Tartaglione v Kuder Is. Colony, Inc. (2010 NY Slip Op 03306)
Tartaglione v Kuder Is. Colony, Inc.
2010 NY Slip Op 03306
Decided on April 20, 2010
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law §431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided onApril20, 2010 SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT WILUAM F. MASTRO, J.P. RUTH C. BALKIN ARIEL E. BELEN CHERYL E. CHAMBERS, JJ.
2008-01161 2009-00011 (Index No. 9752/07)
[*!]Raymond Tartaglione, etc., appellant-respondent,
v
Kuder Island Colony, Inc., et al., respondeou-appeUants.
Gaines, Gruner, Ponzini & Novick, LLP, White Plains, N.Y. (Steven H. Gaines and Denise M. Cossu of counsel), for appellant(espondent. Goldenberg & Selker, LLP, White Plains, N.Y. (Ira S. Goldenberg and Diane E. Selker of counsel), for respondents-appellants.
DECISION & ORDER
http://www.courts.state.ny .us/reporter/3dseries/201 0/2010 _ 03306.htm
Page 1 of4
4126/2010
I
~
I r
····'·'
Tartaglione v Kuder Is. Colony, Inc. (2010 NY Slip Op 03306) Page2 of4
In a shareholders' derivative actio!\ inter alia, to recover damages for breach of
fiduciary duty, the plaintifl'appeals from (1) an order of the Supreme Court, Westchester County (0. Bellantoni, J.), entered January 16,2008, which granted those branches of the
defendants' cross motion which- were for summary judgment dismissing the complaint and
for an award of an attorney's fee, and denied, as academic, his motion for a preliminazy
injunction and (2) a judgment of the same court dated December 1, 2008, which, upon the
order, is in favor of the defendants and against him dismissing the complaint and the
defendants cross-appeal from so much ofthe same judgment as, upon the order, failed to
award them an attorney's fee.
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the cross appeal is dismissed as abandoned; and it is further,
ORDERED that the judgment is affirmed on the appeal; and it is further,
ORDERED that one bill of costs is awarded to the defendants.
The appeal from the intermediate order must be dismissed because the right of direct
appeal therefrom tenninated with the entry of judgment in the action (see Matter of Aho, 39
NY2d 241, 248). The issues raised on the appeal from the order are brought up for review
and have been considered on the appeal from the judgment (see CPLR 550l[a][1]).
The plaintiff is a shareholder of the defendant Kuder Island Colony, Inc. (hereinafter
the corporation), a corporation fonned by the residents of Hen Island in the City of Rye. He
commenced this action against the corporation and its officers and directors, alleging that
they breached their fiduciary obligations by, inter alia, failing to ensure shareholder
compliance with the [*2]Westchester County Sanitary Code, and seeking to compel them to
implement various policies. The plaintiff further sought reimbursement of certain sums he
spent in maintaining Hen Island.
The plaintiff moved for a preliminary injunction compelling the defendants to implement certain of the policies at issue, pending determination of the matter. The
def~dants opposed and cross-moved, inter alia, for summary judgment dismissing the complaint and for an award of an attorney's fee. The Supreme Court granted those branches of the defendants' cross motion which were for sununary judgment dismissing the complaint
http://www.courts.state.ny .uslreporter/3dseriesl20 10/2010 _ 03306.htm 412612010
i r Tartaglione v Kuder Is. Colony, Inc. (2010 NY Slip Op 03306) Page 3 of4
and for an award of an attorney's fee, and denied the plaintiff's motion as academic.
Judgment was entered in favor of the defendants dismissing the complaint, albeit without a
provision awarding them an attorney's fee.
The Supreme Court properly granted that branch of the defendants' cross motion which
was for summary judgment dismissing the complaint. The defendants established their
prima facie entitlement to judgment as a matter of law dismissing the first cause of action by
demonstrating that the challenged actions of the corporation's board of directors are
protected by the business judgment rule (see Matter Levandusky v One Fifth Ave. Apt.
Corp., 75 NY2d 530, 539; Acevedo v Town N Country Condominium, 51 AD 3d 603;
Schoninger v Yardarm Beach Homeowners' Assn.. 134 AD2d 1, 1 0), or are responsibilities
placed on individual shareholders by corporate by-laws and operating rules. The post
submission letters by the Deputy Commissioner of the Division of Environmental Health of
the Westchester County Department of Health (hereinafter the DOH), which estab1ished that
DOH inspections revealed no violations of the Westchester County Sanitary Code, were
properly considered by the Supreme Court, despite a local court rule prohibiting
consideration of post-submission letters (see 22 NYCRR 202.1 [b ]), since the plaintiff
himself requested that the Supreme Court accept further submissions concerning the
outcome of an inspection of Hen Island conducted by the DOH on July 17, 2007.
Consequently, the plaintiff may not complain that the Supreme Court improperly accepted
the post-submission letters merely because the resultS of the inspection were not to his
satisfaction.
The defendants established their entitlement to judgment as a matter of law dismissing
the second cause of action by demonstrating that they did not accept, and the plaintiff did
not have a reasonable expectation of compensation for, the unauthorized activities
undertaken by the plaintiff's beautification committee (see Soumayah v Minnelli. 41 AD3d
390). In response to these showings, the plaintiff failed to raise a triable issue of fact (see
generally Zuckerman v City of New York. 49 NY2d 557, 562-563).
In light of this determination, the plaintiffs motion for a preliminary injunction was
properly denied as academic.
The cross appeal must be dismissed as abandoned (see Sirma v Beach, 59 AD3d 611,
614; Bibas v Bibas. 58 AD3d 586), as the brief submitted by the respondents-appellants does
http://www.courts.state.ny .uslreporter/3dseriesl20 1012010 _ 03306.htm 412612010
~artaglione v Kuder Is. Colony, Inc. (2010 NY Slip Op 03306) Page4 of4
not seek reversal or modification of any portion of the judgment. MAS'J'RO, J.P., BALKIN, BELEN and CHAMBERS, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court
http://www.courts.state.ny.us/reporter/3dseries/20 10/2010 _ 03306.hbn 4/26/2010
Exhibit ''E''
Exhibit "E"
..
SUPREME COURT OP THE STATE OF NEW YORK COUNTY OF WESTCHESTER
P R E S E N T:
HOM. OllAZXO R. BELLUJ'l'OHI JUS'fiCE OF THB SUPREME COURT
RAYMOND TARTAGLIONB, individually and as a shareholder of KUDER ISLAND COLONY, INC. suing on behalf of himself and on behalf of all the shareholders thereof similarly situated,
, '1'0 CCD~~~~M~Ce the statutory 1:.1me pudod for appeals u of righl:. [cPLR SS131a)), you are advlaed to serve a cqpy of thio order, with notice of entry, upon all parl:.iea.
F::ELl!ID & BlllTERED
ll)2c.: 2009
WESTCHESTER COtn'fl'Y CLERK
Plaintiff, 9BOR'l' JI'ORM ORDER Index No. 9752/07 Motion Date: 2/11/09
- against -
RUDER ISLAND COLONY I INC. I BEN MINARD I in his individual capacity and as president of KUDER ISLAND COLONY, INC., JASON ANDERSON, in his individual capacity and as vice-president of KUDER ISLAND COLONY, INC. , JOANN MOLLOY, in her individual capacity and as treasurer of KUDER ISLAND COLONY, INC. , MARTIN BDBRER, in his individual capacity and as secretary of KUDER ISLAND COLONY I INC. I
LORRAINE VOLPE, in her individual capacity, as director and as past president of KUDER ISLAND COLONY, INC. , MARGARET JOHNSON, in her individual capacity and as director of KUDER ISLAND COLONY, INC. , and HELEN CUNNINGHAM, in her individual capacity and as director of KUDER ISLAND COLONY, INC. ,
Defendants.
Plaintiff moves for an order, pursuant to CPLR 2221(e), granting leave to renew and rehear defendants' cross-motion which sought, inter alia, dismissal of the· complaint pursuant to CPLR 32ll(a) (7) and summary judgment pursuant to CPLR 3211(c) upon the ground that new evidence in the form of documents obtained ·from the Westchester County Department of Health and Westchester County Police Department's Environmental Security Unit which were not available until after the original decision by this Court, and upon such renewal, denying defendants' cross-motion in its entirety.
I rl r r
Defendants cross-move for an order, pursuant to 22 NYCRR 130-1.1, imposing sanctions on plaintiff and his attorney for the frivolous motion to renew, and pursuant to 22 NYCRR 130-1.l(b), CPLR 8101 and 830l(a), awarding expenses, costs, disbursements and reasonable attorney fees incurred in connection with the renewal motion.
The following papers were read:
Notice of Motion - Affirmation in Support of Steven H. 1-13 Gaines, Esq. - Affidavit in Support of Raymond Tartaglione - Annexed Exhibits A-J Notice of Cross-Motion - Affirmation of Ira s. 14-18 Goldenberg, Esq. - Affirmation in Opposition of Benjamin Minard - Annexed Exhibits A-B Reply Affirmation in Further Support of Steven H. 19 Gaines, Esq. May 12, 2009 Letter of Steven H. Gaines, Esq. - Annexed 20-22 Exhibits 1-2 May 13, 2009 Letter of Ira S. Goldenberg, Esq. - Annexed 23-24 Exhibit 1 May 27, 2009 Letter of Steven H. Gaines, Esq. 25
upon the foregoing papers it is hereby ORDERED that plaintiff's motion for renewal is denied.
CPLR 222l(e) provides that "[a) ~otion for leave to renew: 2. shall be based upon new facts not offered on the prior
motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and 3. shall contain reasonable justification for the failure to present such facts on the prior motion."
On the instant application, plaintiff has failed to submit any "new evidence" in admissible form which was unavailable to him at the time the underlying motion was sub judice. See · Innovative Chemical Corp. y Howe Plastics & Chftmical Corp., 164 AD2d 965, 966 citing Monroe Dewev Partners v MDR Development. Inc., 159 AD2d 949 and Foley.v Roche, 68 AD2d 558, 567-68 (lat Dept 1979) cited with app Ferencz! v Port Authority of New XQrk and New Jersey, 34 AD3d 722 (2M Dept 2006).
Here, plaintiff is claiming that there is new evidence for the court to consider, to wit: two intermediate documents dated July 19, 2007 which reflect the investigative process. However, same predates ~e Health Department's final determination which this Court relied on in rendering its decision. Moreover, it does not support the conclusions made by movant.
Moreover, piaintiff states that the City of Rye Building
2
·------····- -.-......
1. r
l ~
Inspector issued a Notice of Violation to defendant Kuder Island Colony, Inc. regarding Hen Island on April 9, 2009. An event that takes place after· the prior order is made is not considered newly discovered evidence that would support a motion to renew. See ~onnellv v Donne1l,y, 114 AD2d 6'71 (31:d Dept 1985).
Finally, this Court notes that the violations is~ued by. the City. of Rye are different from those alleged by plaintiff in the underlying complaint. With respect to the violations issued by Rye, which plaintiff claims "bear heavily on issues presented in the pending motion,• plaintiff has not exhausted his administrative remedies, thereby rendering the new claim premature. In fact, said municipality is not even a named party to the case at bar.
Accordingly, the motion for renewal is denied in its entirety.
It is hereby further ORDERED that defendants' cross-motion is denied in its entirety. Neither plaintiff nor his counsel's conduct was frivolous as defined in 22 NYCRR §130-1.1.
Dated: "n1~ ~, ~00, White~lai~s, New York
Gaines, Gruner, Ponzini & Novick, LLP Attorneys for Plaintiff One North Broadway, 12~ Floor White Plains, New York 10601
Goldenberg & Selker, LLP Attorneys for Defendants 399 Knollwood Road, Suite 112 White Plains, New York 10603.
3
RAZIO R. BELLAN'l'ONI e of the Supreme Court
,... ~·.
. . .. ' I '
Exhibit ''F''
. EXBIBITF
t I II • . .
r ·J I I
I I
:;
I
Tartag1:""~~e v Kuder Is. Colony, Inc. (2010 NY Slip Op 03307)
Tartaglione v Kuder Is. Colony, Inc.
2010 NY Slip Op 03307
Decided on April20, 2010
Appellate Division, Second Deparbnent
Published by New York State Law Reoorting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
13 ~D3dL ll3.:,-Decided on April20, 2010
SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DMSION: SECOND JUDICIAL DEPARTMENT WILLIAM F. MASTRO, J.P. RUTH C. BALKIN ARIEL E. BELEN CHERYL E. CHAMBERS, JJ.
2009-07229 (Index No. 9752/07)
[*l]Raymond Tartaglione, etc., appellant,
v
Kuder Island Colony, Inc., et aL, respondents.
Gaines, Gruner, Ponzini & Novick, LLP, White Plains, N.Y. (Steven H. Gaines of counsel), for appellant. Goldenberg & Selker, LLP, White Plains, N.Y. (Ira S. Goldenberg and Diane E. Selker of c~WlSel), for respondents.
DECISION & ORDER
Page I of2
In a shareholders' derivative action, inter alia, to recover damages for breach of
~ttp://www.courts.state.ny .uslreporter/3dseries/201 0/2010 _ 03307 .htm 4/26/2010
f r
.r~ ...
T~~one v Kuder Is. Colony, Inc. (201 0 NY Slip Op 03307) Page 2of2
fiduciary duty, the plaintiff appeals from an order of the Supreme Court, Westchester
Cowtty (0. Bellantoni, J.), entered June 2, 2009, which denied his motion for leave to renew
his opposition ~o the defendants' cross motion, inter alia, for summary judgment dismissing
the complaint, which had been determined in an order entered January 16,2008.
ORDERED that the order is affirmed, with costs.
The Supreme Court properly denied the plaintiff's motion for leave to renew his
opposition to the defendants' cross motion, inter alia, for summary judgment dismissing the
complaint, since the new evidence he submitted would not have warranted denial of the
cross motion (see CPLR 2221[e]; Khan v Nelson. 68 ADJd 1062).
MASTRO, J.P., BALKIN, BELEN and CHAMBERS, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court
http://www.courts.statc.ny .us/reportcr/3dseries/20 10/2010 _ 03307 .htm 4/2612010
