COVID, CO-OPS...AND MASKS

Rush Props. v. Riveros, Date filed: 2021-06-15, Court: Supreme Court, Nassau, Judge: Justice Thomas Rademaker, Case Number: 601909/2021:

"DECISION/ORDER The Plaintiff moves by Order to Show Cause for an Order of the Court which seeks, inter alia, to enjoin Defendant Dawn Riveros, her agents, servants, tenant(s), guests and any other occupants of the premises located at 157 Hempstead Avenue, Apartment 12C, Lynbrook, NY 11.563 (“the Premises”) from entering and/or utilizing common areas of the Cooperative (hereinafter “Co-op”) Building without wearing a face covering/mask; 2) compel Defendant Riveros to wear a face covering/mask whenever in the Go-Op building’s common areas, and 3) award the Plaintiff attorney’s fees, costs, and disbursements incurred in connection with its application. The Respondent did not file opposition to this Order to Show Cause. The Plaintiff, Rush Properties LLC, is a New York limited liability company, and at all times mentioned, was both a shareholder/tenant of a certain cooperative apartment located at 157 Hempstead Avenue, Apt. 12C, Lynbrook, New York. The Plaintiff entered into a written lease agreement with the Defendant for a one-year term, beginning October 1, 2018, and ending on September 30, 2019. This lease was extended by a one-year term beginning October 1, 2019, and ending September 30, 2020, by a written agreement dated July 25, 2019. The lease requires the Defendant to comply with “all laws, orders, rules, requests, and directions, of all governmental authorities” and that the “comfort or rights of other [t]enants must not be interfered with.” The lease also provides that the tenant understands that she is renting an apartment in a Co-op building, and that the lease is subject to the Co-op Offering Plan and Amendments, Proprietary Lease, House Rules, and any other governing Co-op documents.

The Plaintiff contends that on numerous occasions the Defendant entered common areas of the Cooperative apartment building without wearing a face mask or facial covering and that such behavior was in derogation of the regulations promulgated by the state of New York to combat the spread of the COVID-19 virus. The Plaintiff further contends that such behavior resulted from complaints by other tenants in the Co-op apartment and that by refusing to wear a face mask or facial covering the Defendant has placed the health and safety of other residents at risk, and therefore is in violation of the express and implied terms of her tenancy.

On or about February 17, 2021, the Plaintiff filed a summons and complaint against the Defendant in which the Plaintiff seeks, inter alia, a mandatory injunction directing and compelling the Defendant to wear a face covering/mask whenever in the Co-Op building’s common areas; judgment that the Defendant has violated her lease; costs, expenses, disbursements and attorney’s fees incurred in connection with asserting this action; a money in an amount to be determined at trial, but believed to be in excess of $40,000; and an Order ejecting Defendant from the Premises and immediately restoring Plaintiff to possession of the Premises and awarding the Plaintiff damages.

In moving for injunctive relief by Order to Show Cause, the Plaintiff contends that it is essentially acting in response to complaints from the cooperative board and other residents and seeks to take corrective action against its tenant.

A cooperative or condominium association is quasi-governmental and can be considered a democratic sub-society of necessity. (Levandusky v. One Fifth Ave. Apt. Corp., 75 NY2d 530, 533 [1990]). The proprietary lessees or condominium owners consent to be governed, in certain aspects, by the decisions of a board. Like a municipal government, such governing boards are responsible for running the day-to-day affairs of the cooperative and to that end, often have broad powers in areas that range from financial decision making to promulgating regulations regarding pets and parking spaces. Authority to approve or disapprove structural alterations is commonly given to the governing board. (Id.)

Even when the governing board acts within the scope of its authority, some check on its potential powers to regulate residents’ conduct, life-style, and property rights is necessary to protect individual residents from abusive exercise, notwithstanding that the residents have, to an extent, consented to be regulated and even selected their representatives. These goals are best served by a standard of review that is analogous to the business judgment rule applied by courts to determine challenges to decisions made by corporate directors (Levandusky v. One Fifth Ave. Apt. Corp., 75 NY2d 530, 533 [1990]).

A governing board owes its duty of loyalty to its cooperative — that is, it must act for the benefit of the residents collectively. So long as the board acts for the purposes of the cooperative, within the scope of its authority and in good faith, courts will not substitute their judgment for the board. Stated somewhat differently, unless a resident challenging the board’s action is able to demonstrate a breach of this duty, judicial review is not available. (Levandusky v. One Fifth Ave. Apt. Corp., 75 NY2d 530, 533 [1990]). The very concept of cooperative living entails a voluntary, shared control over rules, maintenance, and the composition of the community. Indeed, as the Court of Appeals observed in Levandusky, a shareholder-tenant voluntarily agrees to submit to the authority of a cooperative board, and consequently the board “may significantly restrict the bundle of rights a property owner normally enjoys.” (Levandusky, 75 N.Y.2d at 536).

However, when dealing with termination, courts must exercise a heightened vigilance in examining whether the board’s action meets the Levandusky test. (40 W, 67th St. Corp. v. Pullman, 100 NY2d 147, 158 [2003]). “While deferential, the Levandusky standard should not serve as a rubber stamp for cooperative board actions, particularly those involving tenancy terminations.” (Id. at 157.) The Pullman Court found that in the case before it, “the cooperative unfailingly followed the procedures contained in the lease when acting to terminate defendant’s tenancy.” (Id. at 156.) In particular, the Pullman Court noted that the Board had called a special meeting and given the defendant an opportunity to be heard; acted by super majority vote; properly fashioned the issue and the question to be addressed by resolution; and enacted a resolution which “specified the basis for the action, setting forth a list of specific findings as to defendant’s objectionable behavior.” (320 Owners Corp. v. Harvey, 2008 NY Slip Op 32796[U], *4-5 [Sup Ct, NY County 2008])

On March 7, 2020, the Governor of the State of New York issued Executive Order Number 202 (hereinafter “Executive Order 202″) which declared a State disaster emergency and exercised disaster emergency powers necessary to cope with the COVID-19 pandemic and public health crises. Subsequently, Executive Order 202 was followed by Executive Order 202.17, which required “any individual over the age of two and able to medically tolerate a face-covering” was to be “required to cover their nose and mouth with a mask or cloth face-covering when in a public place and unable to maintain…social distance.” (N.Y. Exec. Order No. 202.17 [Effective Date April 17, 2020]).

With respect to COVID-19 response, Co-op boards are and have been confronted by significant considerations when implementing, applying, and enforcing social distancing guidelines within their communities, particularly in common areas. Some Co-op boards “have moved to require a face covering in all common areas in their buildings.” Thus, if an individual fails to wear a face mask, that would “be a violation of the law, and therefore, a breach of the proprietary lease.” The one exception to this is if “the individual cannot medically tolerate a face covering.” (Phyllis Weisberg, Q&A: Cover Your Face or Face a Fine, Cooperator New York (July 2020], available at https//cooperatornews.com/article/qa-cover-your-face-or-face-a-fine [Last accessed June 15, 2021]).

Under recent New York State guidelines, a Co-op board may be presented with two choices. First, the board can “continue with the Board’s current COVID-19 policy.” Second, a board can “adopt a new COVID-19 policy following the May 13, 2021 CDC Recommendations.” (Considerations for Co-Ops and Condos in Light of New CDC Recommendations, Armstrong Teasdale [May 21, 2021 available at https://www.armstrongteasdale.com/thought-leadership/considerations-for-co-ops-and-condos-in-light-of-new-cdc-recommendations.'last accessed June 15, 2021]).

Under the first option, the Co-op board can “continue to utilize the current system it has established for social distancing and masks for residents, staff contractors, and visitors, without regard to their vaccination status.” (Id.) This is the more conservative approach and can be “changed at any time in the future.” (Id.) Under the second option, a Co-op board can adopt the May 13, 2020 CDC Rules, which permit “fully vaccinated people” to forgo masks and social distancing requirements, but requires unvaccinated people to continue to wear facial coverings and practice social distancing. (Id.)

The instant action was filed prior to the widespread availability of vaccines to the general population. COVID-19 response involves an ever evolving Federal and New York regulatory environment, which becomes less restrictive as more individuals become vaccinated. (See Emma Kinery, “Cuomo Lifts N.Y. Covid Mandates After Reaching 70 percent Vaccine Goal,” Bloomberg June 15, 2021[http://www.bloomberg.com/news/articles/2021-06-15/cuomo-lifts-n-v-covid-mandates-after-reaching-70-vaccine-goal])

On a motion for a preliminary injunction, the moving party must demonstrate by clear and convincing evidence a likelihood of ultimate success on the merits, irreparable injury if the injunction were not granted, and a balancing of equities in favor of granting the injunction. (Nobu Next Door, LLC v. Fine Arts Hous., Inc., 4 NY3d 839 [2005]; Aetna Ins. Co. v. Capasso, 75 NY2d 860 [1990]). If any one of these three requirements are not satisfied, the motion must be denied. (Faberge Intern., Inc. v. Di Pino, 109 AD2d 235 [1st Dept. 1985]). An injunction is a provisional remedy to maintain the status quo and prevent the dissipation of property that could render a judgment ineffectual. However, it is not to determine the ultimate rights of the parties. As such, absent extraordinary circumstances, a preliminary injunction will not issue where to do so would grant the movant the ultimate relief sought in the complaint. (Reichman v. Reichman, 88 AD3d 680 [2nd Dept. 2011]); (SHS Baisley, LLC v. Res Land, Inc., 18 AD3d 727 [2nd Dept. 2005]). In addition, preliminary injunctions should not be granted absent extraordinary or unique circumstances or where the final judgment may otherwise fail to afford complete relief. (Matter of Lasertron Inc. v. Empire State Dev. Corp., 70 Misc 3d 1085, 1092 [Sup Ct, Erie County 2021])

The movants herein request that the Court exercise its equitable powers and compel the Defendant to wear a mask or facial covering. It is a familiar principle that a court of equity, having obtained jurisdiction of the parties and the subject matter of the action, will adapt its relief to the exigencies of the case. (Valentine v. Richardt, 126 NY 272 [1891]), and that an equitable award may be available to “prevent a failure of justice.” (Barker v. Sabato, 251 AD 834 [2nd Dept 1937]). Ultimately, however, the decision to grant or deny a preliminary injunction rests in the sound discretion of the Court. (Matter of Buffalo Teachers Fedn. Inc v. Board of Educ. of the City School District of the City of Buffalo, 71 Misc3d 289 [Sup Ct. Erie County 2021]).

COVID-19 social distancing and face covering requirements constitutes an ever evolving regulatory scheme, and other than several emails complaints from other tenants, which must be considered hearsay by the Court, the Plaintiff has not presented evidence in admissible form that the Defendant’s conduct has risen to a level of a threat to public health. Furthermore, granting an order which requires the tenant to wear a facial covering fails to take into consideration any potential regulatory changes to COVID-19, and raises the potential that a tenant could remain under continuous order to remain masked, even despite being medically unable to tolerate same, as well as cause that tenant to be subject to limitless future applications for contempt.

Upon a careful review of the affidavit in support of the Plaintiff s motions, and the annexed exhibits thereto, and in the exercise of its discretion, the Court finds the Plaintiff has not sustained the burden of proof necessary to warrant injunctive relief. As a result, the Plaintiff s motion is hereby DENIED in its entirety."