SUMMONS

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF BRONX

TO THE ABOVE-NAMED DEFENDANTS:

YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a copy of your answer on Plaintiff within twenty (20) days after the service of this summons, exclusive of the day of service (or within thirty (30) days after the service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the annexed complaint.

Venue is proper in Bronx County pursuant to N.Y. C.P.L.R. §503(c) because Plaintiff’s’ principal places of residence and businesses are located within the State of New York, County of Bronx.

Dated: December 18, 2021

Respectfully submitted,

By:  ________________________

KEVIN ANTHONY DIAZ

770 Brook Avenue, Unit 36A

Bronx, NY. 10451

[insert contact]

[insert telephone]

TO:

Board of Managers

Melrose Court Condominium

812 St. Anns Avenue, Apt A

Bronx, NY. 10451

AKAM Associates, Inc.

260 Madison Avenue, 12^th Fl.

New York, NY 10016.

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF BRONX

COMPLAINT

COMES NOW Plaintiff, Kevin Anthony Diaz, by and on his own behalf, hereby alleges and states as follows:

PARTIES

1. Plaintiff is a citizen of the state of New York and a home owner with his primary place of residence situated at 770 Brook Avenue, Unit 36A, Bronx, NY, 10451.
2. Defendant Melrose Court Condominium Board of Managers (“Board”) is a New York not-for-profit corporation of all unit owners for the Condominium located at [insert address where condominiums are situated]. Defendant Board was formed and exists for the purposes set forth in the [insert document title and date].
3. Defendant AKAM Associates, Inc. (“AKAM”) is a property management entity appointed by the Board.

JURISDICTION AND VENUE

• The Court has jurisdiction under New York Civil Practice Law and Rules (“CPLR”) § 301.
• Plaintiff’s designate Bronx County as the place of trial. Venue is proper in Bronx County pursuant to CPLR § 503 and § 507.

FACTUAL ALLEGATIONS

• Sometimes in 1996, Melrose Court Condominium was constructed within a 3 block Area consisting of 74 Buildings and 265 units. Upon its completion, it was also intended that two units be reserved for specified purposes; one for Super to occupy and the other unit to be used by the Board of Managers as an office located at 811 St. Ann’s Avenue, Apt. A, Bronx, New York 10451.
• The first property management was called Classic Realty and since then, homeowners have been dealing with consistent mismanagement and fiduciary failures from board members and property management companies.
• Sometimes in the year 2000, homeowners became aware of a Lien on the Entire Condominium from the Department of Environmental Protection (DEP) which handles water supply to the condominium.  The Board of Managers and Classic Realty collected maintenance charges from the home owners. The maintenance charges were intended to be used to cater for expenses accrued from the use of common facilities.
• The Board of Managers and Classic Realty had a fiduciary responsibility which they failed to exercise. Instead the community was burdened with an $800,000 debt arising from the negligence and mismanagement of funds by the Board of Managers and Classic Realty.  
• The Board of Managers did not assume responsibility for their oversight, and instead instilled fear into the hearts of the home owners by threatening that they will lose their homes if the $800,000 debt is not discharged.
• The home owners were constrained to discharge the debt accrued to negligence and mismanagement by the Board of Managers.
• Sometimes in the year 2001, a new management company was hired called Wavecrest Management. Fifteen years into the management of the property by Wavecrest Management, it once again came to the unit owners’ attention that payments due to the DEP were never discharged.
• Inquiry into the cause revealed that due to the Board of Management’s negligence and mismanagement, Wavecrest Management withheld payments to DEP and left the community with an outstanding bill of $1.5 million.
• Again, a lien was registered against the entire community by the DEP. True to their character, the Board of Managers once again refused to take responsibility and transferred the burden of discharging the debt to the Homeowners.
• Again, the home owners were constrained to discharge the debt accrued to negligence and mismanagement by the Board of Managers
• Sometimes in 2016, The board of managers increased the maintenance charges from $359.33 to $493.94, a 40% increase. The homeowners were aware and expectant of an increase in maintenance charges. However, no budget or other financial document, was provided to justify the 40% increase as required under Article V, § 1 of the condominium bylaws.
• In October of 2016, the board of managers decided to enclose the entire condominium by setting up fences on City property.  The fencing was estimated to cost approximately $20,000.
• When the construction commenced the Plaintiff spoke to the president of the Board at the time and explained that pursuant to Article V, § 13 of the bylaws – A homeowners meeting is required and a vote is needed to allow any Additions, Alterations or Improvements above $4,000. Sadly, wise counsel did not prevail and the Plaintiff was told that “I can have a meeting with the Board but regardless, the fence is going up”.  
• Sometime in November of 2017, homeowners received notification from Rhamco and the Board of Managers about a New Election to be held sometime in the beginning of 2018.  On November 20th, 2017, Plaintiff submitted his application via email for the upcoming election but after numerous correspondence, the existing board concluded that unless there are 15 candidates to run, there will be no election and the current board will continue to occupy office.  
• Pursuant to Article IV, Section 10 – “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” thus in order to establish Quorum, a meeting must be held.
• The Board of Managers willfully twisted and misconstrued the definition in their favor.
• Further, Article II, Section 4 of the 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”. Sadly, no election was ever held pursuant the above provision of the by-laws. Instead, the Board of Managers and Rhamco willfully misconstrued the truth to fit the narrative that without enough candidates, they are allowed to dismiss an election in gross violation of the by-laws.
• In 2017 the Board and Rhamco commenced a project to install cameras throughout the complex. The budget for this project cost approximately $8,000 to completed. Again, true to the Defendants character the same was done without notice to and approval by the homeowners.  Article V, § 13
• In December 11th, 2018, Plaintiff once again submitted his application to be considered a candidate for a position on the Board. To the Plaintiff’s dismay, Rhamco and the Board again dismissed the Plaintiff’s application on claims that there are not enough candidates. Eventually, no election was held that year.
• On or about Oct 14th, 2019, Plaintiff once again applied via email to run for a position on the Board. Again, the President of the board stated responded by stating that “next meeting should be in January but the board is waiting to see if there will be enough candidates for an election”. Again, no election as held.
• In order to be considered a candidate for any upcoming election, the homeowner ought to demonstrate Good Standing (no debt or problems), which criteria the Plaintiff satisfied at the time he submitted his application.
• Despite the above, the Plaintiff’s multiple applications over the years have all been rejected on grounds not supported by the condominium by-laws.
• Coincidentally, sometime in January 2020, the Plaintiff discovered a false charge was registered against his name indicating that the Plaintiff had arrears on penalty charges dating back to January 2019. The Plaintiff was never aware of the same as he dutifully released payment of maintenance charges each time the amount was due.
• Relying on the false penalty charges, Rhamco and the board of managers disqualified the Plaintiff from participating in the election.
• Sometimes in January 2020, the Plaintiff notified the property management about the discrepancy and requested an explanation as to why these charges were never there in December 2019 when his account had no pending balance.
• In March of 2020, Plaintiff was on vacationing in Puerto Rico but due to COVID-19 pandemic and the restrictive measures that followed, the Plaintiff was stuck in Puerto Rico for period of 3-4 months. In that period of time the Plaintiff incurred some expenses which were unavoidable at the time. This was communicated to Alex from Rhamco.
• On July 9th, 2020, the Plaintiff received a letter from Marcia Fokas (attorney for the Condo) stating that she was INSTRUCTED by the Board of managers to demand payment of un-validated arrears of $1,845.88 and failure to pay would initiate action to tow the Plaintiff’s vehicle and revoking his right to park in the Disabled parking spot.  
• The Plaintiff immediately sent an email to the Board requesting that they supply him with copies of the financial documents for the past 5 years and to provide a calculation of past and present common charges (budget report) for the past 5 years.
• The Plaintiff’s request was ignored or otherwise denied.
• On July 9th, 2020, the Plaintiff emailed a request to the Board, Rhamco and the attorney to follow the bylaws and relinquish financial documents including a budget report and to have a new election take place.
• Again, the Plaintiff’s request was ignored or otherwise denied.
• On October 23rd, 2020, the Plaintiff sent an email to the Board and attorney for the Board explaining to them that their definition of “Quorum” is false as stipulated in the Condo Bylaws Article 4, Section 10. However, their response stated that “Board tells me that they did not have a quorum for the election.  A quorum is needed before an election can take place.”
• On or about December 20th, 2020 was the last time notice was issued to notify the homeowners of an upcoming election.  Homeowners submitted their application but no update was given regarding the upcoming election.
• Again, no election was held.
• The Plaintiff approached every avenue possible to ensure that the board of managers and/or property management follow the bylaws and see that the provisions are implemented as laid down.
• Since then, due to the Board of Managers and Rhamco repeatedly violating the bylaws and their blatant disregard for homeowners’ rights and continuously and willfully disregard the majority of their duties as board members and management company’s contractual obligations, Plaintiff admits that he has been withholding payments to the Condominium in a separate account.
• The Plaintiff is ready and willing to release the funds but on condition that the Board of managers release financial statements, provide a proper budget report and hold elections as stipulated under Condo bylaws.
• Without the above information, the homeowners are unable to determine how condominium funds are being managed and how to calculate the amount needed for each homeowner to pay for their common charges.
• In March of 2021, Plaintiff became aware of an Illegal Easement to his property was authorized without his knowledge or approval to allow a construction company to build a new hi-rise building nearby called Brook 156 Housing Development.  
• Annette Lee falsely signed as President, Rhamco as the Grantor and the Attorney, Marcia Fokas was complicit.  An Agreement was executed in the absence and ignorance of the homeowners and money was exchanged between the Board and Brook 156 Housing Development without proper authority from the homeowners.
• In April of 2021, homeowners received a notification that a New Board was formed and a New Property Management was hired, called AKAM Associates.
• Plaintiff became aware of the illegally appointed president (Annette Lee) because it was their name that was found on the Easement authorization.
• In April 29th, 2021, Plaintiff contacted AKAM Associates representative Ashley Kerr via text message, to inform them that homeowners have had no election for years and the new board was illegally constituted.
• Further the communication advised that homeowners were never involved and never authorized the property to allow an Easement. No response has been received to date.
• The Plaintiff was not discouraged and opted to contact Ashley Kerr directly. In May 2021, the Plaintiff was able to communicate with her and reiterate that the board was illegally constituted as no election ever took place. The Plaintiff further communicated that no financial statements have been issued and no budget report created.  
• Ashley Kerr expressed shock upon learning this information. She further commented that similar complaints have been received from other homeowners.  
• The Plaintiff expressed his concern with respect to a document associated with his address that a “Summons” had been issued instructing Melrose Court Condominium to appear in front of the NYC Office of Administrative Trials and Hearings “OATH” and failure to respond would incur a $6,250 fine.  Summons #035527349L was addressed to Melrose Court Condominium, 770 Brook Avenue, Bronx, NY 10451.  The Plaintiff’s exact home address.  The summons was renewed/rescheduled to January 2022.
• The Plaintiff remained hopeful that the new property management will step up and act upon learning the above facts. However, as time went by it became apparent that the situation will not be changing anytime soon.
• On August 2nd, 2021, a “Town Hall” meeting was held outside the complex. It became clear that the property management has become complicit to the violation of the bylaws even after homeowners questioned how the board was elected without an election during that meeting.
• During the meeting a budget report was provided, but same was severely below standard. The budget report was presented as a Pie Chart (Exhibit 12), and not a detailed breakdown of the expected income and expenditure report.
• On November 23rd, 2021, Plaintiff received a “Notice of Default” in regards to arrears to common charges.  Plaintiff never received and letter from the Board of managers nor from AKAM Associates about Arrears to his account but instead, defendants started a Lien/Foreclosure to force him to pay for charges that have not been validated even after requesting validation.
• On December 6th, 2021, homeowners received yet another increase of common charges from $592.76 to $740.92 monthly and without a supporting financial report and/or a budget report that is supposed to determine how much homeowners pay and projected expenditure.
• On December 10th, 2021, the Plaintiff sent another verification request letter hoping to receive financial information and a calculation of common charges that determines the actual amount monthly required for the maintenance of the condominium and plaintiff’s home. No response has been received to offer verification of the requested information.
• Equally so, on December 10th, 2021, Plaintiff 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. No action has been taken to comply with the contents of the demand letter. Defendant Wayne Allen has on numerous occasions violated the Plaintiffs right to quiet enjoyment of her property by continuously exposing the Plaintiff to excessively loud music, causing the same to cross onto the Plaintiff’s property and into the Plaintiff’s home.

FIRST CAUSE OF ACTION

Injunction

• Plaintiff repeats and realleges the allegations contained above as if set forth fully herein.
• The Condominium Act provides that “Each unit owner shall comply strictly with the by-laws and with rules, regulations, resolutions and decisions adopted pursuant thereto.” NY Real Prop L § 339-J (2015).
• The Board being constituted of unit owners, is bound to comply with and enforce the provisions of the condominium by-laws.
• Contrary to the above, the members of the Board have failed to supply financial statements and budget reports to the unit owners. Furthermore, the Board has failed to carry out mandatory elections as required under the by-laws.
• The Board owe the individual owners, including the Plaintiff, a fiduciary duty to exercise care in the performance of their duties, to follow the Condominium’s by-laws, and to provide all necessary financial documents/paperwork and other information and documents as requested by the Plaintiff.
• The Board breached their duty to the Plaintiff by intentionally and unjustifiably inducing the appointment of a new board, which new board was never subjected to voting requirements prior to its members being appointed.
• The new Board has, without proper authority and capacity, passed and adopted resolutions for implementation and enforcement without prior consent of the unit owners.
• The new Board has, without proper authority and capacity, executed documents on behalf of the unit owners, without prior consent and approval of the unit owners.
• The new Board has embarked on multiple construction projects without obtaining prior consent from unit owners.

SECOND CAUSE OF ACTION

Breach of Fiduciary Duty

• Plaintiff repeats and realleges the allegations contained above as if set forth fully herein.
• The Condominium Act provides that “Each unit owner shall comply strictly with the by-laws and with rules, regulations, resolutions and decisions adopted pursuant thereto.” NY Real Prop L § 339-J (2015).
• The Condominium Act provides that “he manager or board of managers, as the case may be, shall keep detailed, accurate records, in chronological order, of the receipts and expenditures arising from the operation of the property.  Such records and the vouchers authorizing the payments shall be available for examination by the unit owners at convenient hours of weekdays. A written report summarizing such receipts and expenditures shall be rendered by the board of managers to all unit owners at least once annually.” NY Real Prop L § 339-W (2015).
• The Board being constituted of unit owners, is bound to comply with and enforce the provisions of the condominium by-laws.
• Contrary to the above, the members of the Board have failed to supply financial statements and budget reports to the unit owners. Furthermore, the Board has failed to carry out mandatory elections as required under the by-laws.
• The Board owe the individual owners, including the Plaintiff, a fiduciary duty to exercise care in the performance of their duties, to follow the Condominium’s by-laws, and to provide all necessary financial documents/paperwork and other information and documents as requested by the Plaintiff.
• The Board owe the individual owners, including the Plaintiff, a fiduciary duty to exercise care in the performance of their duties, to follow the Condominium’s by-laws, and to ensure a democratic election of the members of the Board is carried out pursuant to the by-laws.
• As a direct and proximate result of the Board’s breach, the Plaintiff has incurred irreparable harm and damages.

THIRD CAUSE OF ACTION

Breach of Contract

• Plaintiff repeats and realleges the allegations contained above as if set forth fully herein.
• The Condominium Act provides that “Each unit owner shall comply strictly with the by-laws and with rules, regulations, resolutions and decisions adopted pursuant thereto.” NY Real Prop L § 339-J (2015).
• The Condominium Act provides that “he manager or board of managers, as the case may be, shall keep detailed, accurate records, in chronological order, of the receipts and expenditures arising from the operation of the property.  Such records and the vouchers authorizing the payments shall be available for examination by the unit owners at convenient hours of weekdays. A written report summarizing such receipts and expenditures shall be rendered by the board of managers to all unit owners at least once annually.” NY Real Prop L § 339-W (2015).
• The Board being constituted of unit owners, is bound to comply with and enforce the provisions of the condominium by-laws.
• Contrary to the above, the members of the Board have failed to supply financial statements and budget reports to the unit owners. Furthermore, the Board has failed to carry out mandatory elections as required under the by-laws.
• The Board owe the individual owners, including the Plaintiff, a fiduciary duty to exercise care in the performance of their duties, to follow the Condominium’s by-laws, and to provide all necessary financial documents/paperwork and other information and documents as requested by the Plaintiff.
• The Board owe the individual owners, including the Plaintiff, a fiduciary duty to exercise care in the performance of their duties, to follow the Condominium’s by-laws, and to ensure a democratic election of the members of the Board is carried out pursuant to the by-laws.
• As a direct and proximate result of the Board’s breach, the Plaintiff has incurred irreparable harm and damages.

FOURTH CAUSE OF ACTION

Aiding and Abetting Breach of Fiduciary Duty

• Plaintiff repeats and realleges the allegations contained above as if set forth fully herein.
• The Condominium Act provides that “Each unit owner shall comply strictly with the by-laws and with rules, regulations, resolutions and decisions adopted pursuant thereto.” NY Real Prop L § 339-J (2015).
• The Condominium Act provides that “he manager or board of managers, as the case may be, shall keep detailed, accurate records, in chronological order, of the receipts and expenditures arising from the operation of the property.  Such records and the vouchers authorizing the payments shall be available for examination by the unit owners at convenient hours of weekdays. A written report summarizing such receipts and expenditures shall be rendered by the board of managers to all unit owners at least once annually.” NY Real Prop L § 339-W (2015).
• The Board being constituted of unit owners, is bound to comply with and enforce the provisions of the condominium by-laws.
• Contrary to the above, the members of the Board have failed to supply financial statements and budget reports to the unit owners. Furthermore, the Board has failed to carry out mandatory elections as required under the by-laws.
• The Board owe the individual owners, including the Plaintiff, a fiduciary duty to exercise care in the performance of their duties, to follow the Condominium’s by-laws, and to provide all necessary financial documents/paperwork and other information and documents as requested by the Plaintiff.
• The Board owe the individual owners, including the Plaintiff, a fiduciary duty to exercise care in the performance of their duties, to follow the Condominium’s by-laws, and to ensure a democratic election of the members of the Board is carried out pursuant to the by-laws.
• AKAM being aware of the multiple complaints by the unit owners, proceeded aid the Board to enforce resolutions passed by the illegally constituted Board.
• AKAM being aware of the multiple complaints by the unit owners, failed to investigate or otherwise verify the grounds concerns raised by the unit owners and instead aided the Board to breach its fiduciary obligations to the unit owners.
• As a direct and proximate result of the Board’s breach, the Plaintiff has incurred irreparable harm and damages.

FIFTH CAUSE OF ACTION

Election Fraud

• Plaintiff repeats and realleges the allegations contained above as if set forth fully herein.
• The Condominium Act provides that “Each unit owner shall comply strictly with the by-laws and with rules, regulations, resolutions and decisions adopted pursuant thereto.” NY Real Prop L § 339-J (2015).
• The Condominium Act provides that “he manager or board of managers, as the case may be, shall keep detailed, accurate records, in chronological order, of the receipts and expenditures arising from the operation of the property.  Such records and the vouchers authorizing the payments shall be available for examination by the unit owners at convenient hours of weekdays. A written report summarizing such receipts and expenditures shall be rendered by the board of managers to all unit owners at least once annually.” NY Real Prop L § 339-W (2015).
• The Board being constituted of unit owners, is bound to comply with and enforce the provisions of the condominium by-laws.
• Contrary to the above, the members of the Board have failed to supply financial statements and budget reports to the unit owners. Furthermore, the Board has failed to carry out mandatory elections as required under the by-laws.
• The Board owe the individual owners, including the Plaintiff, a fiduciary duty to exercise care in the performance of their duties, to follow the Condominium’s by-laws, and to ensure a democratic election of the members of the Board is carried out pursuant to the by-laws.
• In absence of an election and with no single ballot cast by any unit owner, the Board announced a fresh batch of members duly appointed to succeed as the newly constituted Board.
• As a direct and proximate result of the Board’s breach, the Plaintiff has incurred irreparable harm and damages.

SIXTH CAUSE OF ACTION

Aiding and Abetting Election Fraud

1. Plaintiff repeats and realleges the allegations contained above as if set forth fully herein.
2. The Condominium Act provides that “Each unit owner shall comply strictly with the by-laws and with rules, regulations, resolutions and decisions adopted pursuant thereto.” NY Real Prop L § 339-J (2015).
3. The Condominium Act provides that “he manager or board of managers, as the case may be, shall keep detailed, accurate records, in chronological order, of the receipts and expenditures arising from the operation of the property.  Such records and the vouchers authorizing the payments shall be available for examination by the unit owners at convenient hours of weekdays. A written report summarizing such receipts and expenditures shall be rendered by the board of managers to all unit owners at least once annually.” NY Real Prop L § 339-W (2015).
4. The Board being constituted of unit owners, is bound to comply with and enforce the provisions of the condominium by-laws.
5. Contrary to the above, the members of the Board have failed to supply financial statements and budget reports to the unit owners. Furthermore, the Board has failed to carry out mandatory elections as required under the by-laws.
6. The Board owe the individual owners, including the Plaintiff, a fiduciary duty to exercise care in the performance of their duties, to follow the Condominium’s by-laws, and to ensure a democratic election of the members of the Board is carried out pursuant to the by-laws.
7. In absence of an election and with no single ballot cast by any unit owner, the Board announced a fresh batch of members duly appointed to succeed as the newly constituted Board.
8. AKAM being aware of the multiple complaints by the unit owners opposing the newly constituted Board, proceeded aid the Board to enforce resolutions without proper authority conferred upon the board pursuant to the by-laws.
9. AKAM being aware of the multiple complaints by the unit owners, failed to investigate or otherwise verify the concerns raised by the unit owners and instead aided the Board to breach its fiduciary obligations to the unit owners.
10. As a direct and proximate result of the Board’s breach, the Plaintiff has incurred irreparable harm and damages.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff request that this Court award the following relief:

1. A declaration that the current Board is illegally constituted.
2. A declaration that the prior and current Board is in gross violation of its mandate pursuant to the Condominium By-Laws and The Condo Act.
3. A declaration that any acts, resolutions and/or documents adopted by the current Board are null and void for lack of capacity and authority to adopt the same on behalf of the unit owners.
4. Order the Board to provide the Plaintiff with complete audited statements of account showing common profits and expenses for the past five years;
5. Order the Board to provide the Plaintiff with complete audited statements of account showing maintenance charges owed and contributed by the Plaintiff for the past five years;
6. Enjoin the Board from breaching their duties to the Plaintiff by staying all resolutions passed by the board and performance of the Easement Authorization entered into without proper authority;
7. Award Plaintiff reasonable attorneys’ fees and court costs; and
8. For any other relief this court deems just and equitable.

Dated: December 18, 2021

Respectfully submitted,

By:  ________________________

KEVIN ANTHONY DIAZ

770 Brook Avenue, Unit 36A

Bronx, NY. 10451

[insert contact]

[insert telephone]

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