First published: Sep 2024
Shades of Levandusky
TAKEAWAY What happened here is a repeat of the famous court decision Levandusky v. One Fifth Avenue Apartment Corp, which found actual alteration work did not follow the signed alteration agreement. Boards can take action when a unit owner violates an alteration agreement and makes changes affecting other residents or impacting common areas. These actions are subject to the Business Judgment Rule, which gives boards broad discretion as long as they do not act beyond their authority and decisions are made in good faith. And as established in the Levandusky case, such decisions are not subject to second-guessing by the courts.
BOARD OF MGRS. OF THE ALFRED CONDO V. JAMES MILLER
WHAT HAPPENED In a 37-story, mixed-use condominium on the Upper West Side, a drawn-out dispute arose between a unit owner and the board over alterations in the unit owner’s apartment. The bylaws required written approval from the board for all alterations, which had to be in compliance with local laws and expressly prohibited alterations to the common areas as well as shutting off gas or water service without the board’s consent. The unit owner signed the alteration agreement, but during the renovation the kitchen was enlarged, which included relocating the hot-water riser; non-fire-retardant wood was installed in the walls; and glass guardrails that were too low and fixtures that had not been approved were also installed. The board’s architect also found that the unit owner had relocated the stove, gas line, and toilet in a manner that differed from the approved plans and misappropriated the condo’s common areas. Upon learning about these differences, the board sued the unit owner and the unit owner, in turn, sued the board.
IN COURT Alleging a breach of the bylaws and alteration agreement, the board sought to enjoin and direct the owner to correct, repair, and remedy the unauthorized alterations. It additionally sought monetary damages for legal, architectural, and engineering costs incurred. The unit owner filed a counterclaim, declaring he did not breach the alteration agreement or applicable laws. The board then moved for a summary judgment, which the unit owner not only opposed but also sought sanctions against the board. To demonstrate the breach of the bylaws and alteration agreement, the board relied upon findings of its architect, who inspected the apartment two times and observed violations of various safety laws, including fire protection and soundproofing. The unit owner argued that the board had conducted frequent inspections of the apartment during the alterations without making any complaints or alleging any violations, which amounted to a waiver by the board.
The court, noting that the alteration agreement is a contract, sided with the board, granting a summary judgment dismissing the unit owner’s counterclaim and denying his motion for sanctions. The court also noted that a condominium board is statutorily empowered to enforce its bylaws and regulations pursuant to New York’s Real Property Law, and that the court may grant injunctive relief prohibiting violation of the bylaws by unit owners, including a directive to restore the premises or perform repairs. It also noted that the alteration agreement contained a non-waiver clause.
COUNSEL For the Alfred Condo Board of Managers MARIA BOBORIS, Braverman Greenspun / For James Miller PHILIP A. GREENBERG; ETHAN A. KOBRE, Schwartz Sladkus Reich Greenberg Atlas LLP / Nancy M. Bannon
