First published: Nov 2024
The Battle Over the Super’s Apartment
TAKEAWAY Many condominiums and cooperatives have apartments that are dedicated as residences for the resident manager during the term of his or her employment. Boards should be careful to have agreements in place with their superintendents that specifically provide for the permitted occupancy to be incident to the continued employment of such person in that position. The ultimate eviction of a former superintendent may take several months, and sometimes an eager board will opt to enter into a stipulation of settlement with a terminated superintendent with respect to the ultimate delivery of possession of the apartment. However, it is important for boards to reserve all rights to recover damages for any unpermitted use and occupancy. In this case, the condominium board entered into a stipulation of settlement with the defendant as part of the eviction proceeding, but then later brought the unjust enrichment claim seeking recovery of its expenses after the superintendent vacated the unit.
THE CONDO. BD. OF THE 10 NEVINS ST. CONDO. V. QELIQI
WHAT HAPPENED The board of the 10 Nevins St. Condo faced an expensive standoff when the superintendent, whom they fired, dug in his heels and refused to leave his apartment. For 15 long months, the superintendent remained in his designated unit despite no longer working for the building.
The situation was particularly complex because the board didn't actually own the superintendent's unit. Instead, they leased it from the building's sponsor. Throughout this 15-month impasse, the board had to continue making monthly payments to the sponsor, which included reimbursing the sponsor for common charges and real estate taxes. These payments added up to approximately $85,000 – money spent on an apartment they couldn't use.
The board's first attempt to resolve the situation led them to Housing Court, where they sought to evict the superintendent. This initial legal battle ended in a settlement: The superintendent would get a few extra days to move out, and any financial claims would be handled in a separate lawsuit.
When the superintendent still wouldn't budge, the board took its fight to New York Supreme Court. There, it filed a lawsuit claiming "unjust enrichment" – a legal term essentially arguing that the superintendent unfairly benefited at the board's expense. The superintendent filed an answer to the lawsuit that included multiple legal defenses and threw a curveball back at the board: a counterclaim demanding payment for unpaid overtime wages.
IN COURT The Nevins St. board successfully moved for summary judgment with respect to its unjust enrichment claim. The court rejected the defendant’s affirmative defense, which incorrectly argued that an unjust enrichment claim requires “proof of a relationship of trust and confidence.” Rather, the court found that the board had proven all of the elements of a successful unjust enrichment claim because it was able to show that: (i) the defendant was enriched by way of his use and occupancy of the apartment for 15 months; (ii) the defendant’s enrichment was at the expense of the condominium; and (iii) it would be contrary to equity and good conscience to allow the defendant to retain the benefit of such enrichment.
The court also granted the board’s motion to dismiss the defendant’s counterclaim that he was entitled to overtime pay. It noted that the defendant’s pleadings were unclear as to whether the claim was rooted in New York Labor Law or the Fair Labor Standards Act, but that the distinction was immaterial because it was clear that the defendant was a salaried employee. With respect to the remaining affirmative defenses raised in the defendant’s answer, the court found that the defendant had waived them because he failed to actually file any opposition to the plaintiff’s motion.
COUNSEL for the condo board, Noah Levenson, Stephane Avouac, Georgia Ionescu BUTNICK & LEVENSON; for Isuf Qeliqi NONE RECORDED; Justice Louis L. Nock
