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Appeal of Staten Island Seniors Ruling

March 18, 2011 — When the judge laid down the law in the case of the Staten Island Seniors, she quoted Dr. Martin Luther King: "We must learn to live together as brothers or perish together as fools." And with that, she determined that the board of the Elmwood Park II condominium could not fine or kick out the five 68- to 92-year-old unit-owners from the common-area lobby where they had gathered to chat on many afternoons for 14 years.

"Because, quite frankly," said Judge Judith McMahon in her Nov. 30 ruling, which also said the board they couldn't chase the men away from the building's outdoor benches, "there should be a place where people can meet and talk and discuss what's in the paper and talk about how your wife is feeling and who is sick and who may need a ride to the hospital. That is human, that's what we do, that's how we communicate."

Her compromise — allowing the gents two days a week, 90 minutes each, in the lobby, and the same right to use the outdoor benches as anyone else — was filed with the Court Clerk on Jan. 19. On March 3, the condo board filed a Request for Appellate Division Intervention — a notice of intention to appeal the judge's ruling — stating, "The Court erred in granting plaintiffs' relief for a declaratory judgment. Pursuant to the Condominium's bylaws, the relief sought and granted by the Court are expressly prohibited."

Leaving aside the question of whether the condo's bylaws supersede common law, and that the judge's order fell far short of  "permitting them to continue to assemble in the … lobby" without restriction, the board's attorney says the appeals filing is simply technical.

"You have very short window to file a notice of appeal," says Brett L. Carrick of the Manhattan firm Cantor, Epstein & Mazzola, "and so we filed it if, in essence, a decision was made later on to perfect or pursue the appeal. We filed a notice, which is a pretty standard thing after a judgment, to protect our rights We have no immediate plans to pursue an appeal," he notes. "But we have to protect our client's rights and see how things shake out and make sure things proceed as the judge indicated."

Angry Boards

McMahon found that an argument between one of the men, Leroy Tepper, and a board member, Joann Goldstein, in August 2008 was the precipitating factor in the board's sudden claim of loitering and its levying of fines against him and fellow seniors Charles Montemaranno, Thomas Milazzo, Thomas Raia and Ron Silver. In fact, according to testimony by managing agent Cheryl Ruiz, the regional director of Wentworth Property Management, there had been "virtually no complaints about the plaintiffs convening" in all the years beforehand, said the judge.

"When we had Cheryl Ruiz on the stand, she said she'd received complaints but had no record of them," says the men's attorney, Staten Islander Robert Adinolfi. "She had six three-hour sessions with lawyers," he notes. "It makes no sense you would spend so much time and not have records." Ruiz did not return a call for comment.

The judge gave the board credit for trying "to smooth the waters and … to accommodate the plaintiffs" by placing benches outside the front doors. She ordered those benches "to stay where they are." She additionally specified that the seniors -- who like any are particularly susceptible to inclement whether — can use the indoor lobby for two days a week, no more than 90 minutes each. "The rest of the week the board can and should make available the boardroom," referring to an otherwise empty studio apartment that the board uses one day a month for its meeting.

Unused lobby days do not roll over, McMahon said. And addressing the complaint of one resident who found the men too loud when they gathered outdoors, she directed that all "people who sit outside are to be thoughtful of the people inside" and to not "be so loud as to interfere with others."

March Mildness

As of mid-March, says Tepper, "We meet regularly as per the court decision." After the court's ruling, "I sent a copy of the decision to [managing agent] Cheryl to forward to the board, with a letter of thanks for displaying a Christmas tree and a menorah in the lobby, and saying let's let bygones be bygones. Never heard back from them."

That said, members of the board, on which Goldstein no longer sits, have "not been chilly toward us at all" in person, he says. "Most of them wished us good luck."

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