Much Ado About A Leak

While it was probably worth the shot at moving to dismiss based on what seem to be fairly damning emails that there is no leak damage in Apt. 4E coming from 5E’s bathroom, ultimately courts are often hesitant to rely on emails in a motion to dismiss as documentary evidence. Here, maybe if a moisture expert, or even a plumber, had undertaken the same testing as the super and issued a report, it is possible such would have been more appropriately relied upon as documentary evidence on a motion to dismiss. Still, the shareholders of Apt. 5E face an uphill battle, as the proprietary lease plainly provides the co-op access to examine the pipes in apartments in order to find and fix leaks.


WHAT HAPPENED  The Morningside Heights cooperative at 390 Riverside Drive is a 15-story building with sweeping Hudson River views. The Stouts have lived in Apt. 5E since 1973, seven years before it became a co-op. In October 2018 they were notified that Apt. 4E, directly below theirs, had water damage stains on a section of the living room and bathroom ceiling. The managing agent directed them to stop using the master bathroom sink for a period of time, which the Stouts say they did. Nearly 16 months later the managing agent and a plumber requested access to the Stouts’ apartment to inspect the master bathroom for a possible source of the leak. The plumber concluded that the drain pipe needed to be either repaired or replaced as soon as possible in order to avoid additional leakage, damage to Apt. 4E, and possible mold growth. The super asked the Stouts to make extensive use of the sink and tub/shower for a week so he could conduct a moisture test in the 4E. According to an email from the super, the test indicated that the moisture reading was normal.

A few months later, however, the co-op’s managing agent requested access so that the co-op’s plumber could perform a dye test. The Stouts and the co-op disagree about the scheduling details, and when the super and plumber showed up at the Stouts’ door they refused to provide them access.
The co-op took the next step and sent a letter from its attorney directing the Stouts to contact the building’s super or managing agent to arrange for a plumber to perform the necessary repairs. The Stouts feared the plumber was going to tear up their master bathroom, and responded by hiring their own attorney. In this case, the co-op seeks injunctive relief to allow for access to carry out repairs and a declaratory judgment relating to same, and claims breach of the proprietary lease for failure to provide access.

IN COURT The Stouts moved to have the case dismissed, but the court ruled that the co-op had made sufficient allegations to support its claim of a breach of the proprietary lease. The proprietary lease explicitly allows the co-op to enter the apartment and make repairs to fix any defects. The court also held that the Stouts cannot dismiss the case by relying on emails from the building superintendent discussing moisture testing. It determined that, at the motion to dismiss stage, these emails are not admissible as evidence, as they do not qualify as "party admissions" and other exceptions to hearsay rules were improperly raised, and the emails otherwise must meet an "essentially undeniable test." In this case, the emails only reflect the super’s opinion and do not meet the standard of traditional documentary evidence that can be used to dismiss a case, such as official records or contracts.

COUNSEL: For the co-op: Jeremy Cohen, Ingrid Manevitz, Kristin Pendergrass SEYFARTH SHAW;  For the Stout’s: Ian Brandt DAVIDOFF HUTCHER & CITRON and Jason Mohabir GALLET DREYER & BERKEY; JUDGE: Verna L. Saunders