PLAINTIFFS ORIGINAL COMPLAINT

Kevin Anthony Diaz

770 Brook Avenue, Unit 36A

Bronx, NY 10451

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Plaintiff in pro per

IN THE SUPREME COURT OF NEW YORK

IN AND FOR BRONX COUNTY

NOW COMES Kevin Anthony Diaz, Plaintiff, and files this Complaint against Defendants Board of Managers, Melrose Court Condominium; and AKAM Associates, Inc., and for cause would show this Honorable Court as follows:

1. PARTIES

1. Plaintiff Kevin Anthony Diaz is a Married, Law-abiding citizen and male adult of sound mind.  He is “Permanently Disabled” and living on Social Security Income.  Plaintiff  resides at 770 Brook Avenue, Unit 36A, Bronx, NY 10451. At all times in this Complaint, Kevin Anthony Diaz is one of the homeowners at Melrose Court Condominium. He has suffered the causes of action in this Complaint. Therefore, he has standing to bring this lawsuit against Defendants.
2. Defendant Board of Managers (hereinafter referred to as the “Board”), is the board that manages Melrose Court Condominium. The Board’s address is 811 St. Anns Avenue, Apt A, Bronx, NY 10451.
3. Defendant Marcia Fokas (hereinafter referred to as “Marcia”) is a female adult of sound mind and whose business address is 211 East 43 street, Suite 2401, New York, NY  10017 . at all times in this Complaint, Marcia acted as the attorney and continues to act on behalf of the Board.
4. Defendant AKAM Associates, Inc. (hereinafter referred to as “AKAM”), is the current property management company whose business address is 260 Madison Ave, New York, NY 10016 on behalf of the Board of Managers of Melrose Court Condominium.
5. Defendant Ashley Kerr (hereinafter referred to as “Ashley”) is a female adult of sound mind and is the Executive Manager of AKAM Associates.  From 2021, Ashley is currently acting on behalf of the Board of Managers, Melrose Court Condominium.

2. JURISDICTION AND VENUE

6. Jurisdiction exists in this Court pursuant to Article VI § 7 of the New York Constitution.
7. Venue is proper in this Court because the causes of action in this lawsuit took place in the County of Bronx, New York.

3. STATEMENT OF FACTS

8. In 1994, Classic Realty was the first company that managed Melrose Court Condominium.  In 2003, homeowners became aware that Classic Realty withheld payments to the Department of Environmental Protection (“DEP”).  The community was left with an outstanding bill of $804,216.41 and because of that, Melrose Court Condominium was put on a Ninety (90) day Bronx Lien Notice List and Classic Realty vanished.  Homeowner’s became extremely afraid of loosing their homes.  The Board of Managers decided to hold the Homeowner’s responsibly to pay for their negligence and mismanagement and create an Water Assessment to pay bill.  The Assessment money was not allocated to DEP payments.
9. In 2003, Wavecrest Management was hired and became the second property management company to  manage Melrose Court Condominium.  Unfortunately, in 2015, due to the Board of Managers and Wavecrest’s flagrant disregard of their fiduciary responsibilities, homeowner’s became aware that payments to DEP was not being paid and the community was left with an outstanding bill of $1,468,218.71.  DEP put a Ninety (90) day Bronx Lien Notice List against Melrose Court.  Homeowner’s again, became extremely afraid of loosing their homes.  The Board of Managers decided to hold the Homeowner’s responsibly to pay for the Board and Wavecrest’s negligence and mismanagement and create another Water Assessment to pay the bill.  The Assessment money was not allocated to DEP payments.
10. In 2015, Wavecrest was fired due to “Breach of Contract” and RHAMCO became the third property management company to manage Melrose Court Condominium.
11. In 2016, The Board increase the maintenance fees from $359.33 to $493.94 but failed to relinquish adequate financial information or a budget report to outline the reason(s) for the 40% increase.
12. Article V, § 13 of Melrose Court Condominium By-Laws states that any Additions, Alterations or Improvements to the Condominium costing more than $4,000 requires the notification and approval of two-thirds of the homeowner’s approval but in October of 2016, without any notification and/or approval of the homeowners, the Board of Managers with the assistance of RHAMCO decided to willfully violate the by-laws and initiated the installation of a 200 linear feet of wrought iron fence to enclose the Condominium on City property.  The New York City Department of Buildings estimated the cost to be $20,000. When Poles was being installed, Plaintiff approached the president of the Board and reminded her of Article V, § 13 of the By-Laws.  The president of the Board, Bridget Hall, responded and informed Plaintiff that he could hold a homeowners’ meeting if he wanted to, but the construction of the fence would go on regardless.  Although, the construction was against City Regulations and New York City Department of Buildings denied the estimated $20,000 construction, money was illegally used to initiate construction.
13. In November 2017, homeowner’s received notification from RHAMCO that a new election would be held at the beginning of 2018.  Plaintiff submitted his application for the election via email but after numerous emails sent on that day, he was informed that unless the homeowners got 15 people who wanted to run in the elections, the current members at that time would remain.  RHAMCO and the Board of Managers decide to willfully violate the Condo By-Laws of Article II, § 4 election of terms of office and twisting the definition of Quorum under Article 4, § 10 in order to maintain control of the Condominium and of the finance’s and held No Elections.
14. In 2017, the Board violated again Article V, § 13 by failing to notify and/or allow homeowner’s the right to vote for an expense that exceeds the Boards authority but the board decided to ignore homeowners rights and decided to illegally spend $8,000 to install cameras throughout the whole condominium complex.  None of those cameras are currently functional.
15. On December 2018, Homeowner’s was notified about a possible upcoming election.  Plaintiff submitted his application to run for Board member but the excuse used was that they were waiting to see if more candidates would run in the election to meet Quorum.  The board purposely and willfully violated Article II, § 4 election of terms of office and continue to twist the definition of Quorum as stipulated under Article 4, § 10 in order to maintain control of the Condominium and of the finance’s and held No Elections.
16. Between 2018 and 2019, the Board once again violated Article V, § 13 by failing to notify and/or allow homeowner’s the right to vote for an expense that exceeds the Boards authority but the board knowingly and willfully decided to neglect homeowners rights and decided to spend another $15,000 to install NEW cameras due to the fact that the previous cameras was non-functional.
17. On October of 2019, RHAMCO notified homeowners of another possible election.  Plaintiff once again submitted his application to run for Board Member.  He was informed by Laura Bonci that the next meeting would be in January 2020, but again, RHAMCO and the Board of Managers continue to willfully violate the Condo By-Laws of Article II, § 4 election of terms of office and continue to twist the definition of Quorum under Article 4, § 10 in order to maintain control of the Condominium and of the finance’s.
18. In April 2020, the Board increased the maintenance fees from $493.94 to $592.76  but failed to relinquish adequate financial information or a budget report to outline the reason(s) for a twenty (20) percent increase.
19. Under Condo By-laws, in order to to be eligible as a candidate in any election, a homeowner must be in “Good Standing”, clear of any arrears.
20. In October of 2020, RHAMCO notified homeowner’s of an upcoming election and Plaintiff applied to run for the board.
21. At ALL times when Plaintiff applied to run as Board member throughout the years, Plaintiff was ALWAYS in “Good Standing’s” but sometime in February of 2020, Plaintiff became aware that RHAMCO falsified and added 7 months of late fees to Plaintiff’s account dating back to January of 2019.  RHAMCO and the Board used the fabricated late fees to disqualify Plaintiff from running as a board member and put Plaintiff’s account in “Bad Standing’s”.  Regardless, No Election was Held.
22. In March 2020, Plaintiff was on vacation in Puerto Rico and could not travel back home for 3-4 months because of Covid-19. During that time, his home incurred expenses.
23. On July 9, 2020, Plaintiff received a letter from Marcia Fokas informing him that she had been instructed by the board into paying un-validated arrears of $1,845.88 and failure to pay, the Board would have Plaintiff’s car towed and his right to park in his disability spot revoked. Plaintiff felt harassed and intimidated by this request.  Plaintiff responded and requested the Board to provide documents for the past 5 years and a budget report to calculate the past and present common charges in order to validate the charges. The Board ignored Plaintiff and did not provide any documentation.
24. On July 9, 2020, Plaintiff sent an email to Laura Bonci and Marcia Fokas requesting that they follow the bylaws and provide financial documents and hold an election pursuant to the By-Laws.  Plaintiff was ignored and they did not provide any documentation or hold any election.
25. On October 2020, Plaintiff again sent an email to the Board, Laura and Marcia informing them that the board of managers has been violating numerous Condo bylaws.  Failure to have elections, illegally using Condominium funds without notification and/or approval of homeowners and that their definition of quorum according to the condominium bylaws has been twisted in order for the board to remain in power.  In the email conversation, Marcia Fokas informed Plaintiff that the Board told her they did not have candidates to establish Quorum for the election.  Even after notifying her of the violation(s), She decided to aid in the decision to violate the By-laws.
26. On December 20, 2020, the Board informed the homeowners that there would be an election but that was the last time Homeowner’s was notified about an election but still, homeowner’s submitted their applications but the Board held NO election.
27. The Board of Managers and Property management companies willfully and blatantly  continue to disregard homeowners and plaintiff’s legal rights.  December of 2020, Plaintiff admits that in order to protect his property and his finances, plaintiff had to violate a By-Law and began with-holding maintenance fees in a separate account until the Board is legally compliant or by the assistance of this court.
28. In March 2021, Plaintiff became aware that his property among every other homeowner of Melrose Court Condominium Property an Easement was illegally authorized to allow  for the approval for a New Building under Brook 156 Housing Development.  It was signed by Annette Lee as the un-elected President of the Board of Managers of Melrose Court Condominium, and RHAMCO as grantor.  It was facilitated by Marcia Fokas, as the Attorney. Money was exchanged between the Board and Brook 156 Housing Development but no homeowner was informed of the transaction and no homeowner authorized that approval.  It was a fraudulent action.
29. In April 2021, Laura Bonci notified the homeowners that a new property management company called AKAM Associates had been hired and a new board was formed but No Election was ever held since December 2020 and the acting board deceived the homeowner’s in order to maintain control of the Condominium and of the finance’s.
30. On April 29, 2021, Plaintiff reached out to Ashley Kerr, AKAM’s Executive Manager, and informed her that the homeowners did not have an election for years and that the new board is in office illegally. Plaintiff also informed her about the illegal authorization of an Easement.  No respond to Plaintiff’s message.
31. In May 2021, Plaintiff was finally able to reach Ashley Kerr and reiterated what he had texted her. She informed Plaintiff that she had received similar complaints from other homeowner’s.  Plaintiff also informed Ashley that a Summons was issued  against Melrose Court Condominium but was addressed to Plaintiff. The Summons requested that Melrose Court Condominium was to appear before the NYC Office of Administrative Trials and Hearings, otherwise a   fine would be issued in the amount of $6,250.  Since the Summons was addressed to Plaintiff, he was able to get the Summons adjourned to January 2022 but no action has been taken by AKAM or the Board of managers to respond to this summons.
32. The Board held a “Town-hall” meeting on August 2, 2021 in which it presented a hurriedly-drafted pie chart as the budget report and to disregard homeowner’s asking the question, “Nobody voted for the board and How they was elected without an election” but AKAM reiterated the twisted truth and stated that no election had been held because there were not enough homeowners to meet Quorum.  It became clear to the Plaintiff  that AKAM became complicit and will continue to purposely disregard homeowners legal rights.
33. On November 23^rd, 2021, Plaintiff received a Notice of Default in regards to arrears to common charges.  Plaintiff never received any letter from the Board of managers nor from AKAM Associates about Arrears to his account, but instead, the Board of Managers and AKAM immediately decided to abuse their authority and started a Lien/Foreclosure to force Plaintiff to pay for charges that have not been validated, even after requesting validation.
34. On December 6^th, 2021, homeowners received yet another increase to common charges from 592.76 to $740.92 monthly and again, without showing the financial report and/or a budget report that is supposed to determine how much homeowners pay.
35. At which time, on December 10^th, 2021, plaintiff sent a Verification Letter as a response to the “Notice of Default”in the hopes to receive financial information and a proper calculation of common charges that determines the actual amount monthly required for the maintenance of the condominium and plaintiff’s home.  Plaintiff has received no response to verification request.
36. Also, on December 10^th, 2021, Plaintiff also sent a Demand Letter to the Board of Managers and AKAM Associates requesting documentation that Plaintiff is legally permitted to request as stipulated under Condo bylaws and Real Property Law.  Plaintiff has received no response to demand letter.
37. On December 15, 2021, Plaintiff submitted a DEP FOIL (Freedom of Information Law) requesting the history of DEP payments and charges for Melrose Court Condominium and on December 17^th, 2021, Plaintiff received the financial history report from December 1994 til August of 2021.  In that report, it shows that Water Assessment charges was not been added to payments to DEP as stated by the board and management company.
38. On December 18^th, 2021, the Board of managers and AKAM Associates held another “Town-hall” Meeting and handed out pages of financial information that if taken to be true, shows that the Board of Managers and AKAM Associates understand the concept of “Quorum” because they wanted homeowner’s to vote for a $1.5 million dollar Loan.  It also shows huge financial discrepancies when comparing it with the DEP FOIL report.

4. CAUSES OF ACTION

Breach of Contract

Election Fraud

39. Plaintiff hereby incorporates the facts set out in Paragraphs 9-33 of this Complaint as though set out in full herein.
40. Article 4, § 10 of the Condo Bylaws states as follows: “Quorum – …the presence in person or by proxy of Homeowners having one-third of the total authorized votes of all Homeowners shall constitute a quorum at all meeting of the Homeowners.” In order to establish Quorum, a meeting must be held. Defendants did not hold a meeting of the homeowners to determine whether quorum was met. 
41. Defendants willfully twisted the definition to establish control and under Article II, § 4 of the Condo by-laws states that “The term of office of seven (7) members of the Board of Managers elected by Homeowners…shall be fixed at two (2) years, and the term of office of Eight (8) members of the Board of Managers.” Under that logic, at the very least, seven members are considered candidates for the next election while eight are up for election the next year.  Therefore, The Board of Managers and RHAMCO twisted the truth to fit the narrative that without enough candidates, they are allowed to dismiss an election and was able to violate the bylaws and violate homeowners trust and rights. Defendants have ended up not holding elections for the Board up to date in violation of homeowners’ right to vote for new members of the Board since 2017.
42. In December 2020, Defendants collected applications for the Board member election from the homeowners. Defendants were supposed to give updates about the election and subsequently hold the election. Defendants failed to give homeowners an update in regard to the election and to hold the election.   No Election was held.
43. “A unit owner should be given rights similar to those of a shareholder under Business Corporation Law § 624, at least where elections for a condominium board are concerned. “Common interest developments are required to be managed by a homeowners association, defined as `a nonprofit corporation or unincorporated association created for the purpose of managing a common interest development’, which homeowners are generally mandated to join [citation].” Villa De Las Palmas Homeowners Assn. v. Terifaj, (2004) 33 Cal.4th 73, 81 [14 Cal.Rptr.3d 67, 90 P.3d 1223].
44. By failing to hold the election, Defendants violated the homeowners’ right to vote in candidates of their choice. Voting in new members was one remedy of the blatant disregard for Condo Bylaws by members of the current Board.  The Defendants knew that by curtailing the homeowners’ right to vote, they’d continue to maintain control of the finances and .conduct violations such as violating their fiduciary responsibility in neglecting homeowners rights to review the finance’s of the Condominium, failing to show a budget report to adequately calculate common charges based on common expenses increasing fees and charges without a budget report and willfully deny homeowners the most important right of a fair and honest election.
45. Defendants are liable for election fraud.

Aiding and Abetting Election Fraud

46. Plaintiff hereby incorporates the facts and allegations set out in Paragraphs 9-38 of this Complaint as though set out in full herein.
47. Defendants Laura and Marcia acted on behalf of the Board. They actively participated in denying the homeowners their right to vote by saying that quorum was not met whereas there was no meeting, and misconstruing the definition set out in Article 4, § 10 of the Condo Bylaws as a flimsy excuse not to hold the election.
48. Defendants Laura and Marcia aided and abetted the election fraud perpetrated by the Board. 

Breach of Fiduciary Duties

49. Plaintiff hereby incorporates the facts and allegations set out in Paragraphs 9-42 of this Complaint as though set out in full herein.
50. The Board had a fiduciary duty to the homeowners at Melrose Court Condominium to act in their best interests. The Board did the exact opposite of acting in the best interests of the homeowners at Melrose Court Condominium. 
51. In Pomerance v. McGrath, 143 A.D.3d 443, 38 N.Y.S.3d 164, 2016 N.Y. Slip Op. 6462 (N.Y. App. Div. 2016). The court held that the condominium unit owner was entitled to inspect all past, present, and future monthly financial reports, building invoices, redacted legal invoices, and board meeting minutes.
52. The Board abruptly increased fees and charges several times without involving the homeowners. The Board was supposed to show financial records that prompted the increase in fees and charges whenever requested as a form of ensuring transparency. The Board did not furnish Plaintiff, a homeowner, with the financial records that prompted the increase in fees and charges.
53. The Board infringed upon the right of the homeowners to vote by claiming that there was no quorum whereas the Board had not held a meeting to determine whether there was quorum. 
54. The Board’s foregoing actions were not in the best interests of the homeowners and acted in “Bad Faith”. Therefore, the Board breached its fiduciary duty to the homeowners at Melrose Court Condominium.

Fraud

55. Plaintiff hereby incorporates the facts and allegations set out in Paragraphs 9-47 of this Complaint as though set out in full herein.
56. “The elements of a cause of action for fraud require a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the Plaintiff and damages.” Eurycleia v. Seward & Kissel, 12 N.Y. 3d 553 (2009).
57. The Board fabricated penalty charges and late fees then sent them to Plaintiff to pay. Plaintiff knew that the penalty charges and late fees did not exist.
58. The Board knew that Plaintiff must have had no debt to be a candidate for Board member. By fabricating and imposing the false charges on Plaintiff, the Board unlawfully disqualified Plaintiff from running for Board member.
59. “The unit owners of a condominium collectively own the common elements thereof and are responsible for the common expenses. Thus, the rationale that existed for a shareholder to examine a corporation’s books and records at common law applies equally to a unit owner vis-a-vis a condominium.” Pomerance v McGrath, 104 AD3d 440, 441, 961 NYS2d 83 [1st Dept 2013].
60. “The right of a stockholder to examine the books and records of a corporation existed at common law, and does not depend on a statute.” Matter of Steinway, 159 N.Y. 250, 258–259, 262–263, 53 N.E. 1103 [1899].
61. The Board failed to provide Plaintiff and/or homeowners with financial records that showed the common expenses and a Budget report to determine common charges but the Board failed to avail them.

Violation of Condo By-laws

62. Plaintiff hereby incorporates the facts and allegations in Paragraphs 9-52 of this Complaint as though set out in full herein.
63. Article V, § 1 of the Condo Bylaws required the Board to provide a  a budget report to determine the amount of common charges payable by the homeowners to meet common expenses which would account for increments in fees or charges payable by the homeowners. In 2016, the Board increased the maintenance charge by 40% from $359.33 to $493.94 and did not provide a financial report and/or a budget report to account for the increase in maintenance charge.
64. Article V, § 13 of the Condo Bylaws required the Board to invite the homeowners to an election meeting to vote if the Board wanted to make an addition, alteration or improvement to the condominium complex worth more than $4,000.   No meeting was ever held.
65. In October 2016, the Board commenced the  installation of a  200 linear feet of wrought iron fence around the condominium complex worth $20,000 by New York City Department of Buildings. The board illegally used funds without holding a meeting of the homeowners and letting them vote on whether they wanted the fence built or not.  A violation of Article V, § 13.
66. In 2017, the Board spent more than $8,000 to install cameras through the condominium complex without holding a meeting of the homeowners and letting them vote on whether they wanted the cameras installed.  Another violation of Article V, § 13.
67. Between 2018 and 2019, the Board spent more than $15,000 to install cameras again because the previous cameras was not functioning.  Again, no notification was sent to the homeowners.  No meeting was held to allow them vote and accept the the expense  Once again, A violation of Article V, § 13.

Permanent Restraining Order

68. Plaintiff hereby incorporates the facts and allegations in Paragraphs 9-57 of this Complaint as though set out in full herein.
69. In order to state a cause of action for a permanent injunction, the complaint must allege the “violation of a right presently occurring, or threatened and imminent… that the plaintiff has no adequate remedy at law… that serious and irreparable injury will result if the injunction is not granted… and… that the equities are balanced in the plaintiff’s favor.” Elow v. Svenningsen, 58 AD 3d 674, 675 [2d Dept 2009], citing 67A NY 2d Injunctions § 153.
70. Presently, Plaintiff’s right to vie as a candidate for Board Member and the homeowners’ right to have an election has been infringed upon by the Board. There is no other remedy available to Plaintiff apart from the filing of this lawsuit. If this permanent injunction is not granted, Plaintiff and the other homeowners will continuously suffer abrupt financial hardship due to the lack of transparency and blatantly disregarding homeowners legal rights. The equities are in Plaintiff’s favor since he has suffered as a result of the foregoing causes of action perpetrated by Defendants. 
71. The term of the Board members expired a long time ago. All their actions have been geared towards ensuring that there are no elections, therefore, they continue to remain Board members.
72. Plaintiff respectfully requests this Court to issue a permanent injunction against the Board of Melrose Court Condominium prohibiting them from acting as representatives  of Melrose Court Condominium and prohibit them from accessing Condominium financial’s.

Temporary Injunction Pending Determination of this Matter

73. Plaintiff hereby incorporates the facts and allegations in Paragraphs 9-62 of this Complaint as though set out in full herein.
74. In light of the foregoing violations of the Condo Bylaws, fraud, and election fraud by the Board, Plaintiff respectfully requests this Honorable Court to issue a temporary injunction against the Board of Melrose Court Condominium prohibiting them from acting as Board members of Melrose Court Condominium pending the determination of this matter.

5. PRAYER FOR RELIEF

REASONS WHEREFORE, Plaintiff respectfully requests this Honorable Court to grant him the following reliefs:

1. Grant judgment in Plaintiff’s favor;
2. Issue a determination that the Board of Melrose Court Condominium acted contrary to Condo Bylaws, thereby violating the homeowners’ rights;
3. Issue a determination that the term of Board of Melrose Court Condominium ended on Date, and that the Board is currently improperly in office;
4. Issue a Temporary Injunction prohibiting the members of the Board of Melrose Court Condominium from continuing to act as members of the Board of Melrose Court Condominium pending the determination of this matter;
5. Issue a Permanent Injunction prohibiting the members of the Board of Melrose Court Condominium from henceforth acting as members of the Board of Melrose Court Condominium;
6. Issue an Order of Specific Performance compelling the homeowners of Melrose Court Condominium to conduct elections for a new Board;
7. Award Plaintiff damages for violation of his right to vie as a candidate for Board member and fraud;
8. Award Plaintiff punitive damages;
9. Award Plaintiff pre and post judgment interests;
10. Award Plaintiff attorney fees and costs as allowed by law;
11. Award Plaintiff such equitable relief as may be appropriate under the circumstances; and
12. Award Plaintiff such further relief as this Honorable Court deems necessary and proper.

Dated this ___ day of December, 2021.

Respectfully Submitted,

___________________________________

Kevin Anthony Diaz,

Plaintiff in pro per

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