FILED: NEW YORK COUNTY CLERK 11/18/ :12 PM INDEX NO /2014 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 11/18/2014

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1 FILED: NEW YORK COUNTY CLERK 11/18/ :12 PM INDEX NO /2014 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 11/18/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X 322 WEST 47 th STREET HDFC Plaintiff, Index No /14 -against- MARGIE LOO, CAMILLE TIBALDEO, LAWRENCE GUARINO and RAFAEL PEREZ, NOTICE OF APPEARANCE, ANSWER AND COUNTERCLAIMS Defendants X PLEASE TAKE NOTICE that the Law Offices Edward Alper hereby appears on behalf of Defendants CAMILLE TIBALDEO ( Tibaldeo ) and LAWRENCE GUARINO ( Guarino ) (together, Defendants ), and demands that you serve all papers in this proceeding upon the undersigned at the address stated below. Defendants, by their attorneys, The Law Offices of Edward Alper, as and for their Answer to the Complaint, allege as follows: 1. Deny each and every allegation contained in paragraphs of the Complaint designated 1, 3, 4, 8, 10, 17, 26, 27, 28, 29, , 35, 36, 37, 48, 49, 50, 51, 52, 54, 56, 58, 60, 61, and Deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs of the Complaint designated 2, 5, 6, 7, 9, 11, 12, 13, 14, 15, 16, 18, 19, 20, 21, 22, 23, 24, 25, 30, 33, 38, 39, 40, 41, 42, 43, 44, 45, 46, 53, 59, and Admit each and every allegation contained in paragraphs of the Complaint designated 31.

2 4. With regard to paragraphs 47, 55, and 57 of the Complaint, defendants repeat and reallege their allegations responsive to paragraphs 1 though 63 of the Complaint. FIRST AFFIRMATIVE DEFENSE 5. The Verified Petition fails to state a valid cause of action. SECOND AFFIRMATIVE DEFENSE 6. This action is improperly commenced, since the By-Laws governing the plaintiff HDFC require the majority vote of at least three (3) directors for the commencement of this action, and the HDFC, at all relevant times, has had only one (1) director. THIRD AFFIRMATIVE DEFENSE 7. Plaintiff waived its right to maintain this action against Defendants and/or is estopped from maintaining the action, based upon, inter alia, its course of conduct between the parties. FOURTH AFFIRMATIVE DEFENSE 8. The Notices of Termination dated January 26, 2014, referred to in paragraph 49 of the Complaint, were improperly served. 9. For example, the Affidavit of Service for the Notices of Termination set forth only one (1) attempt at personal service, and no attempt was made during business hours. Moreover, Affidavits of Service for all four of the January 26, 2014 Notices of Termination (one served upon each defendant) all state that the server of the Notices was at all four of the defendants apartments at the same time. 10. Thus, the Notices of Termination dated January 26, 2014 are fatally defective, and cannot be lawful predicates for the commencement of this action. 2

3 FIFTH AFFIRMATIVE DEFENSE 11. Plaintiff has failed to join a necessary party herein, namely, the City of New York. 12. Upon information and belief, a Housing Development Fund Cooperative such as plaintiff provides housing pursuant to the definition of low income families contained in the Private Housing Finance Law, Article XI, Upon further information and belief, according to Article X, Section A of the Certificate of Incorporation for plaintiff, no property in an HDFC may be sold or otherwise disposed of without prior written approval of the Commissioner of Housing Preservation and Development. 14. Thus, since an HDFC is not private, and since its very purpose is to meet the governmental concern of housing the poor, the City of New York oversees plaintiff s activities and operation, must approve of the commencement of any eviction proceeding or action. 15. Since the City of New York was neither made a party to this action, nor did the City of New York approve of the commencement of this action, the action should be dismissed. SIXTH AFFIRMATIVE DEFENSE 16. The January 26, 2014 Notice of Termination allegedly served on Guarino failed to set forth bona fide cause for termination. 17. The January 26, 2014 Notice of Termination states that Guarino refused to sign a written lease agreement that was offered to him, and also sets forth one alleged incident of harassment against the Board President, Marta Hauze. 18. However, Guarino is a proprietary lessee, and not a tenant who should have been offered a lease agreement. 19. Moreover, one incidence of alleged harassment is an insufficient predicate for the termination of Guarino s long term occupancy at the Building. 3

4 20. Accordingly, the January 26, 2014 Notice of Termination served on Guarino was defective. SEVENTH AFFIRMATIVE DEFENSE 21. The January 26, 2014 Notices of Termination were superseded by the service of thirty (30) day Notices of Termination dated September 29, 2014, which purported to terminate Defendants tenancies as of October 31, 2014 (the Superseding Notices ). 22. However, this action was commenced by e-filing of the Summons and Complaint on October 16, Thus, the action should be dismissed, since it was wrongfully commenced prior to the October 31, 2014 termination date set forth in the Superseding Notices. EIGHTH AFFIRMATIVE DEFENSE 24. The Superseding Notices were improperly served, but posting them not on the doors of the respective defendants, but on the door to the vestibule of the Building itself. NINTH AFFIRMATIVE DEFENSE 25. To the extent that the Superseding Notices set forth alleged bases for the termination of Defendants right to occupy their apartments that conflicted with the January 26, 2014 Notices of Termination, they were unduly ambiguous and thereby fatally defective. TENTH AFFIRMATIVE DEFENSE 26. Tibaldeo has rights to purchase the shares allocated to Apartment 2R of the Building (the Tibaldeo Premises ), and become the proprietary lessee, at a purchase price of $25, ELEVENTH AFFIRMATIVE DEFENSE 27. Tibaldeo took possession of the Tibaldeo Premises back in 1978, and since at least 1993 was continuously treated as a rent-stabilized tenant. 4

5 28. Upon information and belief, the plan for conversion of the Building to an HDFC did not indicate that tenants forgo their rent-stabilized protection if they stayed beyond their initial lease term or were not otherwise evicted. 29. Thus, the action should be dismissed as against Tibaldeo, since Tibaldeo has rights as a rent-stabilized tenant, who should have been offered a lease renewal pursuant to the guidelines promulgated by the Rent Guidelines Board. TWELFTH AFFIRMATIVE DEFENSE 30. The rent increase in the proposed renewal lease offered to Tibaldeo was unconscionable. Pursuant to the holding of 303 W. 122 nd St. HDFC v. Hussein, 38 Misc.3d 1234(A)(Civ. Ct. N.Y. Co. 2013), the proposed renewal lease was improper and Tibaldeo properly declined to execute it. FIRST COUNTERCLAIM 31. In or about 1993, Guarino initially took possession of Apartment 5F (the Guarino Premises ) of the building known as and located at 322 West 47 th Street, New York, New York (the Building ). 32. Guarino lived continuously in the Guarino Premises since In 2009, Guarino was given the opportunity to become a shareholder of the Guarino Premises. 34. A closing was held on June 3, 2009, with two (2) members of the HDFC board, Betty Benavides and Cindy Ho, during which I was issued a proprietary lease for the Guarino Premises. 35. At the time of the closing both Benavides and Ho were shareholders in good standing with the HDFC, as well as board members in good standing. 36. Although Guarino was fully acknowledged as a shareholder of the Guarino Premises, as well as the proprietary lessee, no stock certificate was ever issued to Guarino, just as no stock certificate 5

6 was ever issued to Benavides or Ho. 37. Upon information and belief, plaintiff challenges Guarino s position that he is a shareholder of the shares allocated to the Guarino Premises, as well as the proprietary lessee, and claims that Guarino is just a tenant of the Guarino Premises. 38. Accordingly, an actual dispute and a justiciable controversy exist between the parties. 39. By reason of the foregoing, Guarino is entitled to a declaratory judgment that (a) he is the proprietary lessee of the Guarino Premises, and (b) he should be issued the shares allocated to the Guarino Premises. 40. Guarino has no adequate remedy at law. SECOND COUNTERCLAIM 41. Defendants repeat and reallege paragraphs 1 through 39 herein. 42. Since the closing at which Guarino was issued a proprietary lease for the Guarino Premises, Guarino has fully abided by the terms of the proprietary lease, and his occupancy in the Guarino premises has been governed thereby. 43. By reason of the foregoing, Guarino is entitled to specific performance, and plaintiff should be compelled to issue a stock certificate to Guarino, evidencing Guarino s ownership of the shares allocated to the Guarino Premises. THIRD COUNTERCLAIM 44. Defendants repeat and reallege paragraphs 1 through 42 herein. 45. As of March 2006, Tibaldeo had a vested right to purchase the Tibaldeo Premises for $25, as per plaintiff s then management company, Clinton Housing Development Company. 46. Upon information and belief, plaintiff and/or plaintiff s agent(s) failed and refused to consummate the transaction with Tibaldeo in accordance with the HDFC s by-laws, and Tibaldeo 6

7 remained a rent-stabilized tenant of the Tibaldeo Premises. 47. Upon information and belief, plaintiff challenges and disputes Tibaldeo right to become a shareholder of the shares allocated to the Tibaldeo Premises, as well as the proprietary lessee therein, 48. Accordingly, there an actual dispute and a justiciable controversy between Tibaldeo and plaintiff. 49. By reason of the foregoing, the Court should rendered a declaration that Tibaldeo is entitled to purchase the shares allocated to the Tibaldeo Premises for the price of $25,000.00, and become the proprietary lessee of said apartment. FOURTH COUNTERCLAIM 50. Defendants repeat and reallege paragraphs 1 through 48 herein. 51. Tibaldeo performed all of her obligations necessary to become the shareholder and proprietary lessee of the Tibaldeo Premises. 52. By reason of the foregoing, Tibaldeo is entitled to specific performance, and plaintiff should be compelled to sell the shares allocated to the Tibaldeo Premises to Tibaldeo for the payment of $25,000.00, and Tibaldeo should become the proprietary lessee of the Tibaldeo Premises. FIFTH COUNTERCLAIM 53. Defendants repeat and reallege paragraphs 1 through 51 herein. 54. Alternatively, by reason of the foregoing, the Court should render declaratory judgment that Tibaldeo is entitled to lease renewals pursuant to the Rent Stabilization Law and Code. WHEREFORE, by reason of the foregoing, an Order and/or Judgment should issue: (1) Dismissing the Complaint in its entirety; (2) On the First Counterclaim, granting defendant Lawrence Guarino a declaration that he is the proprietary lessee of the Guarino Premises, and is the shareholder 7

8 of said premises as well, who is entitled to receive a stock certificate evidencing his ownership of the shares allocated to the Guarino Premises; (3) On the Second Counterclaim, directing and/or compelling plaintiff to issue defendant Lawrence Guarino a stock certificate evidencing his ownership of the shares allocated to the Guarino Premises; (4) On the Third Counterclaim, granting defendant Camille Tibaldeo a declaration that she is entitled to purchase the shares allocated to the Tibaldeo Premises for the price of $25,000.00, and become the proprietary lessee of said apartment; (5) On the Fourth Counterclaim, directing and/or compelling plaintiff to sell the shares allocated to the Tibaldeo Premises to Tibaldeo for the payment of $25,000.00, and making Tibaldeo the proprietary lessee of the Tibaldeo Premises; (6) On the Fifth Counterclaim, alternatively, declaring that Tibaldeo is entitled to receive a lease renewal pursuant to the guidelines promulgated by the Rent Guidelines Board; and; (7) Granting such other and further relief, including costs, disbursements and attorneys fees, as to this Court seems just and proper. Dated: New York, New York November 18, 2014 THE LAW OFFICES OF EDWARD ALPER Attorney for Defendants Lawrence Guarino and Camille Tibaldeo 30 Broad Street Suite 1403 New York, New York (646) /s/ Edward Alper By: Edward Paul Alper, Esq. 8