IN
THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA
CASE
NO. 04-19092 (13)
ROBERT
AIELLO,
Plaintiff,
v.
JUDITH
STERN, GEORGE CONROY,
JUDITH
RIVERA, ALYSIA FREEMAN, EILEEN BORMAN,
COLONIAL MANOR WEST APARTMENTS CONDOMINIUM
ASSOCIATION, INC., AND SUNRAE MANAGEMENT SERVICES,
INC.
Defendants.
/
SECOND
AMENDED COMPLAINT
Plaintiff,
ROBERT AIELLO, sues Defendants, JUDITH STERN, GEORGE CONROY, JUDITH RIVERA,
ALYSIA FREEMAN, EILEEN BORMAN, COLONIAL MANOR WEST APARTMENTS CONDOMINIUM
ASSOCIATION, INC. and SUNRAE MANAGEMENT SERVICES, INC., and alleges that:
GENERAL
ALLEGATIONS
1.
This is an action for damages in excess of $15,000.00, exclusive of
interest, costs and attorneys’ fees.
2.
Plaintiff, ROBERT AIELLO ("AIELLO"), is an individual, a
resident of Dallas, Texas and is sui
juris. MR. AIELLO owns four condominium units – Unit Numbers 103,
109, 303 and 309 – of the Colonial Manor West Condominium Apartments
(“Colonial Manor West”) in Broward County, Florida.
3.
Defendant, JUDITH STERN (“STERN”), is an individual, a resident
of Broward County, Florida, and is otherwise sui
juris.
4.
Defendant, GEORGE CONROY (“CONROY”), is an individual, a resident
of Broward County, Florida, and is otherwise sui
juris.
5.
Defendant, JUDITH RIVERA (“RIVERA”), is an individual, a resident
of Broward County, Florida, and is otherwise sui
juris.
6.
Defendant, ALYSIA FREEMAN (“FREEMAN”), is an individual and
is otherwise sui juris.
7.
Defendant, EILEEN BORMAN (“BORMAN”), is an individual, a resident
of Broward County, Florida, and is otherwise sui
juris.
8.
Defendant, COLONIAL MANOR WEST APARTMENTS CONDOMINIUM ASSOCIATION,
INC. ("CMW ASSOCIATION"), is a Florida not-for-profit corporation
operating the Colonial Manor West Condominium Apartments located at 2424
N.E. 9th Street, Fort Lauderdale, Broward County, Florida.
The CMW ASSOCIATION is a condominium association governed by Chapter 718,Florida
Statutes. AIELLO, as the owner
of four (4) condominium units in Colonial Manor West, is a member of the CMW
ASSOCIATION.
9.
Defendant, SUNRAE MANAGEMENT SERVICES, INC. ("SUNRAE
MANAGEMENT"), is a Florida corporation engaging in the property and
community association management business in Broward County, Florida from
its office located at 7071 West Commercial Boulevard, Suite 2B, Tamarac,
Florida 33319.
10.
At times material hereto, STERN, CONROY, RIVERA, FREEMAN and BORMAN served as
directors of the CMW ASSOCIATION, and may, from time to time, be
collectively referred to as “CMW DIRECTORS”.
STERN is presently and, at all times material hereto has been, the
President of the CMW ASSOCIATION. In
such capacities, the CMW DIRECTORS owed a fiduciary duty and responsibility
to AIELLO and the other owners and members of the CMW ASSOCIATION.
11.
At all times material hereto, the CMW ASSOCIATION contracted with
SUNRAE MANAGEMENT to provide condominium management services pursuant to, inter
alia, §§ 718.111
& 718.3025, Florida Statutes.
12.
Venue is proper in Broward County, Florida, in that:
(a) Defendants are either: i. individuals residing in Broward County,
Florida; and/or ii. corporations doing business in and having agents or
other representatives in Broward County, Florida; and/or (b) the property
that is the subject matter of this action is located in Broward County,
Florida; and/or (c) Defendants' actions that gave rise to this action took
place in Broward County, Florida.
COUNT
I
FAILURE
TO COMPLY WITH § 718.111(12), FLORIDA STATUTES
(vs.
CMW Association and Sunrae Management)
13.
AIELLO realleges and reavers the allegations set forth in paragraphs
1 through 12 above as though fully set forth herein.
14.
On October 7, 2004, AIELLO, through his Texas counsel, Dee W. Dilts,
first requested that the CMW ASSOCIATION provide copies of documents
relating to the operations of the association including, but not limited to,
association minutes, notices, and documents relating to potential
condominium assessments. See
letter from Dilts to Lee Burg, Esq., attorney for the CMW ASSOCIATION,
attached hereto as Exhibit "A".
The CMW ASSOCIATION completely ignored Dilts’ letter and failed to
produce any documents.
15.
After this initial request, AIELLO retained Florida counsel who
communicated AIELLO's concerns about the association's operations (some of
which are a subject matter of this lawsuit) and again requested specified
documents. See letter
from Richard W. Epstein, Esq. to the CMW ASSOCIATION, Board of Directors,
dated October 26, 2004, attached hereto as Exhibit "B".
CMW ASSOCIATION did not reply to this letter or produce any
documents.
16.
On November 17, 2004, AIELLO made a third, formal, request, through
counsel, to the CMW ASSOCIATION, for the inspection of CMW ASSOCIATION’s
“Official Records” pursuant to § 718.111(12), Florida Statutes.
A copy of this request is attached hereto as Exhibit "C".
The CMW ASSOCIATION, through its counsel, did respond to this
request. At the CMW
ASSOCIATION’s request, the inspection of the CMW ASSOCIATION’s Official
Records was rescheduled from November 30, 2004 to December 2, 2004.
17.
On December 1, 2004, the day before the inspection of records, SUNRAE
MANAGEMENT, the CMW ASSOCIATION’s management company, and, according to
the CMW ASSOCIATION, the custodian of all of the CMW ASSOCIATION’s
Official Records, wrote AIELLO’s counsel – AIELLO’s designated
representative for the inspection of records – imposing conditions and
limitations upon the inspection not warranted by § 718.111(12), Florida
Statutes. See letter from Karen Busch dated November 30, 2004, attached hereto
as Exhibit “D”. This letter
necessitated AIELLO’s response, attached hereto as Exhibit “E”.
18.
On December 2, 2004, AIELLO's authorized representative, Robby
Birnbaum, appeared at SUNRAE MANAGEMENT’s offices at 9:57 a.m. The
receptionist requested that Birnbaum wait in SUNRAE MANAGEMENT’s front
entranceway area while the Manager, Scott Busch, was summoned.
19.
Directly in front of SUNRAE MANAGEMENT’s entryway, and across from
the reception desk, was a staircase leading to an upper floor office or loft
area. Three minutes after
Birnbaum's arrival, Busch came down the stairs, identified himself as the
Manager/Operator of SUNRAE MANAGEMENT, and proclaimed to Birnbaum that the
inspection was "illegal," "unlawful," and that Birnbaum
"did not have a right to come into their business to inspect any
documents." Birnbaum
responded that he intended no disruption of SUNRAE MANAGEMENT’s business
operations, was there at the instruction of AIELLO to conduct a lawful
inspection, and would fully cooperate with SUNRAE MANAGEMENT to facilitate
the review the documents. Busch
complained that he and/or other employees of SUNRAE MANAGEMENT had stayed up
all night "printing" documents for the inspection.
Busch warned Birnbaum that he would not be allowed to stay more than
a minute past noon because his office was busy and they did not appreciate
having an attorney come over for a document inspection.
20.
Busch then pointed Birnbaum to four (4) banker's boxes located
underneath the stairwell near the main entry door of the office.
Birnbaum asked Busch if there was any location Busch preferred
Birnbaum use to inspect the documents; Busch did not respond.
Birnbaum asked Busch if he would like the inspection to take place in
a conference room or office, away from the main lobby; Busch did not
respond. Rather, he motioned Birnbaum toward the boxes.
The boxes were on the floor near where SUNRAE MANAGEMENT stored its
copy paper. There was a copy
machine in front of the four (4) boxes.
As no more appropriate alternative was provided, Birnbaum sat down on
the floor under the stairwell and began the inspection.
Birnbaum had a legal size notepad with a brown-craft file folder
containing his notes for the inspection, and a hand-held dictating device.
21.
Within five minutes of Birnbaum being seated, Busch returned and
repeated that the inspection was unlawful and a disruption to his office.
Birnbaum replied that he was not aware of the details of the case,
but was simply there to inspect the documents.
Busch retreated up the staircase, apparently to his office, but two
minutes later, a large man, approximately 6'1" tall, weighing
approximately 300 pounds, approached Birnbaum and began looking over
Birnbaum's shoulder while he was sitting, cross-legged, on the floor under
the staircase reviewing documents. This
unidentified individual paced back and forth near Birnbaum, at times his
legs coming within six inches of where Birnbaum was seated, peering over
Birnbaum's shoulder and into Birnbaum’s folder containing attorney-client
privileged notes. This
continued for approximately ten minutes, until the man left the office.
While Birnbaum was reviewing the documents and dictating his notes,
Birnbaum dictated a note relating to the man who had been lurking.
During this entire time, Birnbaum remained seated on the floor in
front of the boxes under the staircase.
22.
Apparently, the receptionist overheard this dictation and reported it
to Busch. Busch stormed down
the staircase accusing Birnbaum of "spying" on his employees.
He repeated that he was uncomfortable with the document inspection
and that he was calling the police. Busch
instructed the receptionist to call the Broward County Sheriff's Office.
While remaining seated on the floor, Birnbaum explained to Busch that
he used the dictating device to take notes on the document inspection, that
he was not spying, and that he had been seated on the floor under the
staircase inspecting the documents the entire time.
Busch accused Birnbaum of “using the tape recorder to spy on the
office."
23.
Birnbaum continued the document inspection while Busch berated him.
At 10:32 a.m., while Birnbaum remained seated on the floor, now
inspecting the second box of documents, Broward Sheriff's Deputy Colantuno
entered SUNRAE MANAGEMENT’s officer through its main door.
Busch immediately took Deputy Colantuno outside to speak with him.
Birnbaum continued the document inspection.
Approximately three minutes later, Deputy Colantuno and Busch
returned. Deputy Colantuno
stated that SUNRAE MANAGEMENT and Busch were uncomfortable with Birnbaum
conducting the document inspection and that Busch requested that Birnbaum
leave the property. Birnbaum
cooperated and proceeded to leave the property.
He closed the boxes, returned them to their original locations under
the staircase, packed up his bag and left.
On Birnbaum's way out of the office, Busch reiterated that the
document inspection was not permitted and that this event had disrupted his
office. Birnbaum left all
documents behind, as instructed by SUNRAE MANAGEMENT.
No documents were photocopied.
24.
Pursuant to § 718.111(12), Florida Statutes, AIELLO is entitled to
inspect and photocopy the Official Records of the CMW ASSOCIATION.
SUNRAE MANAGEMENT, as the CMW ASSOCIATION's contracted management
company, was the custodian of these records and was required to make these
records available pursuant to § 718.111(12), Florida Statutes.
SUNRAE MANAGEMENT refused to make such records available, in willful
violation of §718.111(12)(c), which states:
The
official records of the association are open to inspection by any
association member or the authorized representative of such member at all
reasonable times. The right to
inspect the records includes the right to make or obtain copies, at
reasonable expense, if any, of the association member.
The association may adopt reasonable rules regarding the frequency,
time, location, notice, and manner of record inspections and copying.
The failure of an association to provide the records within 10
working days after receipt of a written request shall create a rebuttable
presumption that the association willfully failed to comply with this
paragraph. A unit owner who is
denied access to official records is entitled to the actual damages or
minimum damages for the association's willful failure to comply with this
paragraph. The minimum damages
shall be $50 per calendar day up to 10 days, the calculation to begin on the
11th working day after receipt of the written request.
The failure to permit inspection of the association records as
provided herein entitles any person prevailing in an enforcement action to
recover reasonable attorney's fees from the person in control of the records
who, directly or indirectly, knowingly denied access to the records for
inspection. (e.s.)
The
CMW ASSOCIATION willfully failed to permit AIELLO's statutory right to
inspect the Official Records of the CMW ASSOCIATION, and SUNRAE MANAGEMENT
was in control of the records and directly and knowingly denied AIELLO
access to the records for inspection.
25.
AIELLO has been damaged by willful violations of § 718.111(12),
Florida Statutes by the CMW ASSOCIATION and SUNRAE MANAGEMENT.
26.
Eventually, some documents were produced for inspection and copying
in March 2005, but not before damages were incurred and suit had to be
filed, and not all documents requested were produced that were requested.
AIELLO and counsel are reviewing such documents, but to date are
aware that the following requests were not completely complied with:
A.
A copy of all minutes of
the Board and Owners from January 1, 2004
through the present;
B.
A book or books
which contain the minutes of all meeting of the
Association of the Board of Directors, and of the unit owners for a
period of not less than the last seven (7) years;
C.
A current roster of all
unit owners and their mailing addresses, unit identifications, voting
certifications and telephone numbers;
D.
Accounting records for the Association for a period of not less than
the past seven (7) years, which shall include, but not be limited to:
1.
Accurate, itemized, and detailed records of all receipts and
expenditures;
2.
A current account and a monthly, bimonthly, or quarterly statement of
the account for each Unit designating the name of the unit owner, the due
date and the amount of each assessment, the amount paid upon the account and
the balance due.
3.
All audits, review, accounting statements, and financial reports of
the Association; and
4.
All contracts for work to be performed, including bids for work to be
performed during the past year.
E.
Ballots, sign-in sheets, voting proxies, and all other papers
relating to voting by unit owners for all elections which have occurred
within the past year.
27.
Pursuant to
§ 718.111(12)(c), Florida Statutes, AIELLO is entitled to statutory
damages, actual damages, costs and attorneys’ fees.
28.
AIELLO has retained counsel to represent him in this action and is
entitled to recover his attorneys’ fees pursuant to § 718.111(12)(c),
Florida Statutes.
WHEREFORE,
Plaintiff, ROBERT AIELLO, demands judgment against Defendants, COLONIAL
MANOR WEST APARTMENTS CONDOMINIUM ASSOCIATION, INC. and SUNRAE MANAGEMENT
SERVICES, INC., for statutory damages, actual damages, pre-judgment
interest, court costs, attorneys’ fees pursuant to § 718.111(12)(c), Fla.
Stat., and such other and further relief as this Court deems just and
proper.
COUNT
II
DECLARATORY JUDGMENT FOR ULTRA VIRES ACTS
(vs. Stern, Conroy, Rivera, Freeman,
Borman and CMW Association)
29.
AIELLO realleges and reavers the allegations set forth in paragraphs
1 through 12 above as though fully set forth herein, and further alleges
subject matter jurisdiction under Chapter 86, Florida Statutes.
30.
According to the CMW ASSOCIATION, the existence of dry wood termites
in the Colonial Manor West structure was recognized in January or February
2004. On June 17, 2004, at a
purported meeting of the Board of Directors of the CMW ASSOCIATION, STERN,
CONROY, RIVERA and FREEMAN, as directors allegedly present at or for such
meeting, voted to contract with Dead Bug Edwards Termite Company for the
tenting and fumigation of the Colonial Manor West structure.
31.
At such purported meeting, the Board also considered and approved the
substantial – and expensive – modification of the existing elevator.
32.
Despite the CMW ASSOCIATION’s conduct of official business on June
17, 2004, and the actions taken by the CMW DIRECTORS, no meeting of the
Board of Directors was ever properly called or conducted on June 17, 2004.
No proper notice of such meeting was ever provided, and such meeting
was not a regularly scheduled board meeting which may, under appropriate
circumstances, dispense with the requirement of notice.
As a consequence, all action undertaken by the CMW ASSOCIATION and
the CMW DIRECTORS at such purported meeting was ultra vires.
33.
In attempts to remedy the above ultra vires acts, the CMW ASSOCIATION
Board met in September 2004 and again in March 2005.
However, their acts taken at both were ineffective as follows:
A.
At the September 23, 2004 meeting, in
an attempt to ratify the illegal June vote, four voted for tenting, but one
was Borman, and three voted no. Borman
was appointed to the Board in August 2004 to fill a Board vacancy (See
Minutes at Exhibit “F”), but there was no vacancy when she was nominated
and elected by the Board in derogation
of Article III, ¶2 of the Bylaws attached to the Declaration of Condominium
(Exhibit “G”).
Therefore, since Borman was improperly elected in August, her vote in
September was a nullity, and the resulting tally of the remaining directors
would be a no action vote of three for and three against.
B.
Again in March 2005, a new Board elected in January 2005 attempted to
ratify the illegal June 2004 and September Board votes.
However, the notice of the meeting was improperly amended three days
prior to the meeting to indicate a vote would take place on the tenting.
See Composite Exhibit “H.” Therefore,
all action taken by the new Board at the March meeting was ultra vires.
34.
Approval of these actions at a properly constituted meeting of the
CMW ASSOCIATION’s Board of Directors is required before these planned
activities can be implemented. Despite
the absence of such a proper meeting, the CMW ASSOCIATION and the CMW
DIRECTORS continued to proceed forward with the scheduling and conduct of
the fumigation of the Colonial Manor West structure and the unauthorized and
unwarranted modification of the elevator, at a total proposed cost to the
members of the CMW ASSOCIATION of nearly $32,000.
35.
In the meantime, the Board also levied a special assessment of
$50,000 to pay for the foregoing, but the CONDOMINIUM ASSOCIATION and the
CMW DIRECTORS have spent in excess of $14,000 of the $50,000 special
assessment on items other than for what the special assessment was intended
in violation of § 718.116(10) of the Condominium Act.
Some of these unauthorized expenditures went to current expenses and
others to pay attorney’s fees incurred by the Condominium Association’s
private attorneys after the Condominium Association’s insurance company
already had provided counsel in January 2005, such private counsel not
withdrawing from representation until March 30, 2005, pursuant to repeated
demands by AIELLO and inquiries by other unit owners.
36.
Also in the meantime, it has come to light that, while the
CONDOMINIUM ASSOCIATION and the CMW DIRECTORS purportedly approved and
agreed to sign Dead Bug Edwards general contract (Exhibit “I”), the CMW
DIRECTORS failed to obtain, review, discuss, or approve at any of its
meetings the separate, much more detailed contract Dead Bug Edwards requires
each unit owner to sign before tenting could begin.
The separate contract (Exhibit “J”) has a negligence waiver and
additionally requires each unit owner, among other things: (1) to vacate his
home for up to 72 hours (3 days); (2) to acknowledge that the contract price
agreed to by the Condominium Association and the CMW DIRECTORS did not
include Dead Bug Edwards’ provision of any guard service during the time
the building would be tented and vacant; (3) to turn off all their security
systems, open all their windows and give their keys to the fumigator; (4) to
remove all their plants and cars; and (5) to place all their food items and
medicines in gas tight containers or throw them out upon return.
AIELLO and a number of unit owners have refused to sign this onerous
agreement, especially when by the Board’s own experts, Bruce Edwards of
Dead Bug Edwards and Scott Katzer, both agree this is not an emergency or
“imminent danger” issue and there are alternative methods available.
Under these circumstances, because the separate contract was not
approved by the CMW DIRECTORS, and because of the CMW DIRECTORS’
mismanagement of this issue, the CONDOMINIUM ASSOCIATION cannot force AIELLO
and the individual owners to sign the separate agreement with Dead Bug
Edwards.
37.
Additionally, according to the CMW ASSOCIATION and the CMW DIRECTORS,
plaintiff’s rights have been changed, and plaintiff has been affected by
Bylaw and Declaration of Condominium changes including but not limited to:
A.
Bylaws:
Notice of Members’ Meetings, Article II, Section 3
and Notice of Director Meetings, Article III, Section 5, both of which
originally required that three day notice must be given by mail, telephone,
telegraph or personally, but now purport to allow posting and in the case of
board meetings purport that notice is properly given if “posted and/or
mailed”;
B.
Bylaws: First Right of Refusal for the unit
owner to purchase another unit for sale, Article VII, Section 2, which the new bylaws
purport to have abolished; and
C.
Declaration of Condominium: Article 9 (pages
11, 12, and 13) Sale, Rental, Transfer or Lease, which also attempts to
abolish a unit owner’s first right of refusal.
38.
The Bylaw changes were made without 100% mortgagee approval and are
ultra vires.
39.
The defendants have refused to obtain 100% mortgage approval, despite
a 1999 letter to the CMW ASSOCIATION by its own attorneys that the actions
were ultra vires (Exhibit “K”) and being further warned by Aiello
(Exhibit “L”).
40.
In August 2000, AIELLO was damaged by this ultra vires action when he
attempted
to match the purchase price of unit 305 but his offer was not allowed by the
CMW ASSOCIATION because of the illegal bylaw change.
41.
Plaintiff is an interested party within the meaning of § 86.021,
Fla. Stat., and
§
718.303 (1) and needs the court to construe the rights of CMW ASSOCIATION,
its directors and the plaintiff in light of the Condominium Act for Florida,
all of whom are proper parties to this action under § 86.091, Fla. Stat.
42.
AIELLO has retained counsel to represent him in this action.
AIELLO is entitled to recover his
attorney’s fees pursuant to inter
alia, § 718.303(1), Florida Statutes.
WHEREFORE, Plaintiff, ROBERT AIELLO, demands judgment against CMW
ASSOCIATION for in excess of $100,000 for the
denial of AIELLO’s right to match the offer on
unit 305, pre-judgment interest, a declaration of his rights and a
declaration that the ultra vires acts are
void and that the CMW ASSOCIATION and the Board members are prohibited from
taking any action that would be ultra vires,
that the acts taken in contradiction to the special assessment
be declared such, that the court declare AIELLO’s right not to sign the
separate contract that Dead Bug Edwards
requires with the individual unit owners, and that the court take whatever
further action is just and equitable under the law, and that AIELLO be
awarded attorneys’ fees pursuant to §
718.303(1) and costs.
COUNT
III
DEFAMATION
(vs. Stern and CMW Association)
43.
AIELLO realleges and reavers the allegations set forth in paragraphs
1, 2, 3, 8, 10 and 12 above, as though fully set forth herein.
44.
On January 6, 2005, STERN, then serving in her capacity as President
of the
CMW
ASSOCIATION, authored a letter addressed to “All Unit Owners” of
COLONIAL MANOR WEST, a copy of which is attached as Exhibit “M”. This letter was distributed by STERN and the CMW ASSOCIATION
to the Colonial Manor West unit owners and posted on the CMW ASSOCIATION’s
bulletin Board located in the common area of Colonial Manor West accessible
to all Colonial Manor West unit owners, their guests and any other person
present on the premises.
45.
STERN’s letter contained numerous false and untrue statements
including,
without
limitation:
A.
AIELLO is “taking photographs with zoom lenses or whatever type of equipment
they have purchased of personal items placed on the privacy of the
Boreman’s private balcony area and sending out communications of
descriptions of their personal underwear.” (Exhibit “M”, ¶ 3);
B.
AIELLO has “made
demands that I sell my unit to them or ‘else’”.
(Exhibit “M”, ¶ 4);
C.
AIELLO has “made false allegations accusing us of having a car
towed, when no such
action took place and they acknowledge that no such action took place.”
(Exhibit “M”, ¶ 6);
D.
AIELLO has “repeatedly attempted to break the locks on the new
bulletin Board costing us in repair bills.” (Exhibit “M”,
¶ 7);
E
AIELLO has “broken and destroyed many of the holiday
decorations.” (Exhibit
“M”, ¶ 8);
F.
AIELLO has “repeatedly attempted to destroy and remove the community’s barbeque from the premises.” (Exhibit “M”,
¶ 9);
G.
AIELLO has “made false statements to all of you that the barbeque
is ‘illegal’ under State
law.” (Exhibit “M”, ¶ 9); and
H.
“Documents have been supplied to …AIELLO, despite their claims to
each of you that no such thing
transpired. We have signed Fed
Ex receipts.” (Exhibit “M”, ¶ 12).
46.
Stern wrote a follow-up letter on April 5, 2005 (Exhibit “N”)
claiming:
A.
AIELLO wrote or was part of writing “anonymous” letters written about
herself, and various
Board members, and mailed to most unit owners, as well as her
daughter at her home, and to her neighbors at her residential community,
which is also located in Fort Lauderdale (including one sent to NY to one of
the snowbirds). (Exhibit
“N”, ¶ 1).
B.
AIELLO wrote or was part of writing emails discussing pictures taken
by Joseph Vallillo regarding
Eileen Borman’s private use of her balcony and
descriptions of her underwear. (Exhibit
“N”, ¶ 2).
C.
AIELLO wrote or was part of writing an email demanding she sell her unit to
Vallillo for $125,000 (Exhibit “N”, ¶ 3).
47.
STERN additionally sent e-mails to members claiming that plaintiff
opposed the
tenting
so he could have his own friends in the business get the business (See
Composite Exhibit ”O”), but at the time, he knew no one in the business
who was licensed in Florida.
48.
The foregoing statements, among others, are false and untrue, and
STERN,
individually
and in her capacity as President of the CMW ASSOCIATION, knew of the falsity
of such statements.
49.
STERN, individually and in her capacity as President of the CMW
ASSOCIATION,
distributed, disseminated and published such false and untrue statements
willfully and maliciously, without the benefit or protection of any
privilege or justification.
50. Such
false and untrue statements published by STERN, individually and in her
capacity as President of CMW ASSOCIATION,
falsely and wrongly impugned AIELLO’s character, in some cases accused him
of criminal acts, and subjected him to hatred, public ridicule, disgrace and
contempt.
51.
As a consequence, AIELLO has suffered harm and injury to his
reputation and has otherwise been damaged.
52.
STERN published such false and untrue statements in her capacity as
President of CMW ASSOCIATION, using the facilities of the CMW ASSOCIATION,
and did and committed such wrongful acts and conduct while acting and
serving in her official capacity and in the course and scope of her position
as President and a director of the CMW ASSOCIATION.
As such, the CMW ASSOCIATION actively and knowingly participated with
STERN in the perpetuation of the false and untrue statements about AIELLO
and condoned, ratified and consented to such conduct.
WHEREFORE, Plaintiff, ROBERT
AIELLO, demands judgment against Defendants, JUDITH STERN and COLONIAL MANOR
WEST APARTMENTS CONDOMINIUM ASSOCIATION, INC., for damages and court costs.
AIELLO reserves his right to seek leave to amend to assert a claim
for punitive damages against STERN and the CMW ASSOCIATION pursuant to
Section 768.72, Florida Statutes.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has
been furnished via U.S. Mail to: John H. Richards, Esquire, Cooney, Mattson,
Lance, et al, P.O. Box 14546, Fort Lauderdale, FL 33302 this
_____ day of April, 2005.
Respectfully Submitted,
PETER
M. COMMETTE, P.A.
Attorney
for Plaintiff
1323
S.E. Third Avenue
Fort
Lauderdale, Florida 33316
Telephone:
(954) 764-0005
Facsimile:
(954) 764-1478
By:
PETER
M. COMMETTE, ESQ.
Florida
Bar No. 350133