360 East 72nd Street Owners Incorporated v. Rutter

Can a co-op enjoin ball-playing on a terrace next to an apartment where such use is in contravention of a local ordinance? The answer was a clear “yes” in 360 East 72nd Street Owners Incorporated v. Rutter.

In this case, 360 East 72nd Street Owners Incorporated, moved for partial summary judgment on the issue of a permanent injunction enjoining Mitchell and Ballanca Smigel Rutter, their children, and any guests from ball-playing on the terrace of their combined duplex apartment (C1804, C1904 and C1905) in Manhattan. The Rutters cross-moved for leave to amend their answer to add counterclaims.

The crux of the dispute between these parties concerned the terrace/roof next to apartment C1804. The Rutters held the shares and the proprietary leases to two additional apartments, C1904 and C1905, which had been renovated to form one duplex apartment. The complaint alleged that the Rutters made alterations to the terrace/roof adjacent to C1804 (including the installation of a basketball hoop) that were not sanctioned by the board. The co-op stated that the Rutters’ children used this area to play games, including basketball, which disturbed neighboring owners and created a risk of injury to persons or property. The first cause of action in the complaint sought a permanent injunction enjoining ball-playing and restraining the Rutters from maintaining structures or equipment that violated the New York City Building Code Section 27334.

The co-op’s motion for partial summary judgment was based upon the code, section 27334, the undisputed facts, and the letter and deposition testimony of Ronald A. Livian, deputy commissioner of technical affairs of the New York City Department of Buildings.

The New York City Building Code Section 27334 states:

Protective guards. Buildings that are more than twenty-two feet in height and have roofs that are flatter than twenty degrees to the horizontal shall be provided with a parapet not less than three feet six inches high, or be provided with a three foot six inch railing or fence, or a combination of a parapet and railing or fence which together are not less than three feet six inches high. Railings or fences may be located inward from the face of the exterior wall a distance not exceeding six feet, and shall be of a type that will prevent children from crawling through or over them. Where roofs are used for recreational purposes, wire fencing at least ten feet high shall be constructed. Where ball games are played on roofs the wire fencing shall be extended to provide an overhead closure. Except on buildings of TI-D or TJ-E construction, railings or fences shall be of non-combustible material. Railings shall be constructed as required in section 27558 of article three of subchapter nine of this chapter.

The following facts were not in dispute. The Rutters admitted that the existing fencing on the roof/terrace was less than 10 feet in height. The proprietary lease required board approval for structural changes to the terrace/roof. The board had not approved the Rutters’ request for permission to install a 10-foot-high fence.

Livian responded to a request by the Rutters for an interpretation of section 27334. Specifically, the Rutters sought a ruling stating that section 27334 did not apply to private terraces, that the terrace was not a roof, and that the code did not apply to ball-playing on a private terrace. However, Livian unequivocally stated, in both his written response to the Rutters’ inquiry and at his deposition, that section 27334 did apply to the terrace. Specifically, when asked, “Are terraces, such as the terrace that’s the subject of this litigation, subject to section 27334 of the code?” he answered,

“Yes, a terrace of substantial dimensions would be subject to safety requirements of the code.” Q: “When you say ‘of the code,” are you referring to section 273347?” Answer: “Yes.”

Based upon the foregoing, the court said that the co-op had established that the fence on the Rutters’ terrace did not conform to the code requirements with respect to ball-playing on a roof. Therefore, the co-op made out its prima facie case for partial summary judgment for a permanent injunction prohibiting ball-playing on the Rutters’ terrace. In fact, during the duration of this case, the Rutters had agreed not to use the terrace for ball-playing. The court said that the burden shifted to defendants to demonstrate, by admissible evidence, the existence of a factual issue requiring a trial.

The Rutters’ response was multi-faceted. The Rutters alleged that it was the replacement of the surface of the terrace by the co-op that caused the noise to travel to the apartment immediately below the terrace. The Rutters further stated that, prior to the replacement of the surface, there was a layer of poured concrete underneath, which effectively insulated the apartment below from noise. That concrete was not replaced during the resurfacing. The Rutters also stated that the co-op board knew that they had a basketball hoop on the terrace, and that there was no evidence that basketball or any other ball-playing on the terrace had resulted in injury or constituted an unsafe condition. The Rutters alleged that the decision of the board not to allow them to replace the existing fence with a 10-foot fence was made in bad faith.

Even assuming for argument’s sake that the Rutters’ allegations were true, the court said that they still did not negate the fact that the present fence did not comply with the code. The Rutters argued, without any authority cited, that the opinion of the Department of Buildings, which they elected to obtain, was in error. The Rutters maintained that the terrace was not a roof as defined in the code.

However, it was well-settled that an agency’s construction of a statute or regulation that it is charged with enforcing will be upheld provided that it is neither irrational nor unreasonable. The use of the roof/terrace for recreational purposes clearly made it subject to the regulations of the building code that seek to protect the safety of those using the roof and individuals on the street.

Therefore, summary judgment was granted to the co-op on its cause of action seeking a permanent injunction against ball-playing on the roof, on the basis that, under the existing circumstances, the lack of 10-foot fencing was a violation of the code. In the court’s view, the Rutters’ allegations clearly presented issues of fact and credibility that could only be determined at trial.

It was those claims that formed the basis for the proposed counterclaims in the Rutters’ cross-motion for permission to serve an amended answer. The proposed counterclaims alleged that the Rutters were owed $43,000 for the rubber pavers installed on the roof (first counterclaim); that the refusal of the co-op board of their request to be allowed to install a 10foot fence that complied with the building code was unreasonable, and therefore that the co-op should be compelled to allow the installation (third counterclaim); a declaratory judgment determining that it was the co-op’s reconstruction of the terrace/roof surface that caused the noise problems in the apartment directly below the terrace (fourth counterclaim); injunctive relief requiring the co-op board to install sound proof insulation for the terrace, at the board’s expense (fifth counterclaim); breach of the proprietary leases by the coop because the Rutters have “been precluded from using their terrace as they had prior to the construction” (sixth counterclaim); and for attorney’s fees (seventh counterclaim).

The second proposed counterclaim, a declaratory judgment that section 27334 of the code did not apply to the roof/terrace area was precluded by the decision herein granting summary judgment. The Rutters also sought to add a fifth affirmative defense stating that because of’ the co-op board’s breaches of the lease and bad faith, they were not protected by the business judgment rule.

The court said that leave to amend a pleading should be freely granted, in the absence of prejudice or surprise. However, to conserve judicial resources, an examination of the proposed counterclaims was warranted. Leave to amend would be denied where the proposed pleading failed to state a cause of action or was palpably insufficient as a matter of law.

The co-op stated that the third counterclaim was not valid because the Rutters’ sixth counterclaim sought money damages, and was not an actual request for injunctive relief. In the current case, the ultimate relief sought by the Rutters would be the reconstruction of the terrace/roof so that their children could resume playing ball. The court held that money damages alone would not provide that relief, and therefore the third and fifth counterclaims were viable.

With respect to the fourth counterclaim, insofar as it sought a declaration that the co-op board’s reconstruction of the roof was the cause of the noise problems, that counterclaim was viable; however, as the co-op stated, the Rutters could not seek to absolve themselves of all such allegations forever. Finally, the court held that the co-op was correct in asserting that neither defendants’ notice of cross-motion nor defendants’ arguments in support of the cross-motion gave notice of the proposed fifth affirmative defense. Therefore, the fifth proposed affirmative defense was stricken.

The court concluded that this was not to say that the Rutters could not allege that the co-op board had acted in bad faith, and therefore was not entitled to the defense of the business judgment rule, but merely that the Rutters may not litigate without proper notice to the opposing party.

Accordingly, the motion was granted to the extent of granting partial summary judgment in favor of the co-op against the Rutters, and a permanent injunction was granted enjoining the Rutters, their children, and their guests from engaging in ball-playing activities on their terrace. It was also ordered that the action should continue with respect to the second, third, and fourth causes of action in the complaint, and with respect to the first, third, fourth, fifth, sixth, and seventh counterclaims in the second amended answer.