First published: Sep 2024
From $674,240 to $67,200
TAKEAWAY Litigators are good at making fine distinctions between words, and surely the condominium was justifiably unhappy about a sweetheart deal that gave the commercial unit owner a 90% discount on repair work. Ultimately the condominium could chart no satisfactory path around the words of the declaration. And yet, given the dollars at stake for the repair job, as well the prospect of future repair costs, it is perhaps too easy to say the condominium’s board should have taken the “L” without a fight. Sometimes parties need the courts to settle an argument, and at this condo at least, the argument is now settled, albeit in favor of the commercial unit owner.
BD. OF MGRS. OF THE 100 W.93 CONDO V. 660 COLUMBUS RETAIL OWNER
What Happened At 100 West 93rd St, a mixed-use condominium, the board of managers assessed the approximately 300 unit owners their common interest share to pay for a $2.8 million facade and roof repair and other capital improvements. It ran into a problem with the commercial unit owners, though, because the condo’s declaration said that the commercial unit owner would be assessed at a rate of only 2.40% for “repairs and maintenance”—a tenth of the unit owner’s 24.08% common interest rate. The commercial unit owner refused to pay the assessment at its common interest rate, maintaining that the 2.40% cap was being ignored by the condominium.
The condominium sued, declaring that the commercial owners refused to pay their proper share based on a “contorted interpretation” of the condo’s documents. The unit owner moved to dismiss the suit, the trial judge granted the motion, and the condo appealed.
In the Court The condominium argued three points: (1) the trial court erred because the lower rate in the declaration applied only to “common charges” and not “assessments;” (2) the lower rate in the declaration applied to “repairs and maintenance,” which differed from the replacement and refurbishment work at issue here; and (3) the declaration’s low rate was a “sweetheart deal” between the commercial unit owner and the former sponsor that should not be given effect as a matter of justice and fair play. In response, the commercial unit argued that the assessment at the higher rate was plainly at odds with the express terms of the declaration, and so was impermissible.
The appellate court affirmed the trial court’s dismissal of the lawsuit, finding that the provisions of the declaration “utterly refute” the condominium’s arguments. The commercial unit owner’s proper rate for the repair work was the lower rate of 2.40%, so the suit was untenable.
COUNSEL For Board of Managers ALLY HACK Warshaw Burstein / For the Commercial Owner and 100 West 93 LLC ROBERT ABRAMS Katsky Korins/ Appellate Division-First Department
