74 Year Old Roosevelt Island Resident Since 1977 Being Evicted From Her Apartment By Rivercross Board Of Directors - She Says Coop Board Retaliating Against Her For Requesting Disability Accommodation, Board Says She Was Harassing Other Residents

74 year old senior citizen Kathleen Kovach is a resident owner since 1977 of the Roosevelt Island Rivercross Co-op building.

But if the Rivercross Co-op Board of Directors have their way, Ms Kovach will be evicted as soon as this week from her long time home. 

Ms Kovach is a retired architect. She has long suffered from Multiple Chemical Sensitivities (MCS) disability which, she says, has been verified by 4 doctors. 

Due to her illness, in 2012 she asked the Rivercross Board of Directors for approval to modify her apartment windows to open more than 4 inches so that more fresh air circulates in her apartment which helps her deal with the MCS disability. 

According to Ms Kovach the Rivercross Board of Directors refused her disability accomodation request and one Board Member claimed MCS did not exist. Mr Kovach claims that the Rivercross Board of Directors is evicting her as retaliation for her seeking legal redress to her disability claim. Ms Kovach also claims that the Rivercross Board has a financial incentive to terminate her lease and sell her apartment.

According to court documents, the Rivercross Board of Directors allege that Ms Kovach engaged in objectionable behavior by harassing tenant shareholder of 2 apartment units in 2017-18. Ms Kovach denies these allegations and says instead she was the victim of harassment by owners of the 2 mentioned apartment units. Also, Ms Kovach says that for the last several years there have been no complaints against her.

I spoke with Ms Kovach last Wednesday  the day before the eviction notice was taped to her door.

 I asked the Rivercross Coop Board of Directors for comment on this matter. According to a Board representative:

Attached is a copy of the lower court's decision upholding Rivercross' actions and a copy of the appellate court's decision upholding the lower court. The matter remains in litigation and we therefore have no further comment.

According to the January 24, 2023 decision of the NY State Supreme Court Appellate Division:

... The court correctly granted plaintiff summary judgment on its ejectment cause of action, as plaintiff’s decision to terminate defendant’s proprietary lease for her objectionable conduct of constantly harassing her neighbors was protected by the business judgment rule (see 40 West 67th Street Corp. v Pullman,...

... While defendant contends that the termination of her tenancy was in retaliation for her own complaints against her neighbors and her requests for a disability accommodation, she offers no evidentiary support for this claim aside from speculative statements in her affidavit in opposition to plaintiff’s motion. Thus, there is no indication of bad faith warranting closer review of plaintiff’s determination. Nor did defendant refute any of the allegations of objectionable conduct such that a triable issue of fact is raised.

Defendant’s affirmative defenses were correctly dismissed in the absence of any evidence submitted by defendant to demonstrate their merits...

Ms Kovach's appellate attorney Robert Grimble adds: 

This is a very brief summary of the issues in Ms. Kovach’s case.

There is a general problem with the whole idea of a Pullman action. In this case, the vote to terminate Ms. Kovach’s proprietary lease was a board vote. The lease and by-laws set forth a series of notices to be given prior to holding a meeting, but at the meeting in Ms. Kovach’s case, the board retired to a private session and voted to terminate Ms. Kovach’s lease. 

This gives the board essentially unlimited power over a shareholder. We argued that the Court should review what the board did. The case law is very vague as to what degree a court can review the coop board’s actions,  and the coop relied on the “business judgment rule” a position that makes the board action virtually unchallengeable. 

 In this case, the Supreme Court granted the coop summary judgment. We argued that this was improper because there had been no discovery at that point, and we had no opportunity to develop defenses such as retaliatory eviction. We also pointed out that the coop’s motion did not have any factual affidavits detailing the conduct Ms. Kovach was accused of engaging in. There was no proof in a form to be considered on a summary judgment motion showing that Ms. Kovach had engaged in undesirable conduct.

We also pointed out some big inconsistencies in the paperwork leading up to the board meeting. The proprietary lease required a notice telling Ms. Kovach that she was doing something wrong which was shortly followed by a notice saying the conduct had recurred.

However, the notices are inconsistent in that the first notice claimed conduct such as banging on the walls and creating noise for other tenants. The notice that said the conduct had recurred had paragraph after paragraph of claims to the effect that Ms. Kovach had complained of fumes, but then refused (at some unstated later time and/or date) to let building personnel into her apartment to see if there was a smell (or noise is some cases).

The general problem with Pullman cases is that it lets a coop kick out a shareholder tenant essentially arbitrarily.

Over the last week, I've asked usually knowledgeable Rivercross residents if they knew anything about the Rivercross Coop Board's eviction proceedings against Ms. Kovach. None had.

Last evening, Ms Kovach placed a letter under the doors of her Rivercross neighbors giving her side of this story. An excerpt:

... Before my case could proceed to take depositions, and establish the merits of my case, the judge ruled in favor of the building. My attorney says that I’ve been denied a trial because depositions weren’t taken and my side of the case was never presented to the Court. And therefore, I’ve received an eviction notice. 

I’ve enjoyed living here and even after these issues, I would like to stay. If anyone has any suggestions that might help me keep my home, please call or slip a note under my door, ... Thanks for your time and any suggestions you might have. 

In desperation,

You would think reasonable and compassionate people could resolve this matter without resorting to evicting a 74 year old woman from her home of many years.