Case Notes
Case Notes provides insight on one particularly relevant co-op or condo case—clearly explaining what happened, why it’s important, and what lessons can be learned within.
Category
- Access
- Alterations
- Appeals
- Arbitration
- Assessment
- Attorney Fees
- Attorney-Client
- Authority to Sue
- Balcony/Terrace Rights
- Bike Lane
- Board of Directors
- Books and Records
- Breach of Lease
- Business Judgment Rule
- Bylaws
- Bylaws/House Rules
- Certificate of Occupancy
- Charges/Fees
- Commercial Unit
- Common Element
- Common Elements
- Companion Animal
- Constitutionality
- Construction Defects
- Contracts
- Conversion
- Defamation
- Discovery
- Discrimination
- Due Diligence
- Easement
- Elections
- Estate
- Eviction
- Eviction/Termination
- Fiduciary Duty
- Fines
- Foreclosure
- Fraud
- Governance
- Gym
- House Rules
- Indemnification
- Indemnification/Subrogation
- Injunction
- Insurance
- Labor Law
- Liability of Directors
- Licenses
- Liens
- Maintenance
- Malpractice
- Management
- Mechanic's Lien
- Misrepresentations
- Motion Practice
- Motion Practive
- Negligence
- Notice of Pendency
- Nuisance
- Occupancy Agreement
- Ownership
- Parking
- Partnership
- Personal Injury
- Pets
- Property Damage
- Proprietary Lease
- Reasonableness
- Receivership
- Release
- Repairs
- Representations
- Sales
- Sponsor
- Statute of Limitations
- Stock/Shares
- Stocks/Shares
- Sublets
- Succession Rights
- Tax
- Third-Party Liability
- Transfers
- Trespassing
- Trial Practice
- Violations
- Warranty of Habitability
- Yellowstone Injunction
- Zoning
First published: Dec 2024
A Win for the ClimateTAKEAWAY Nearly 18 months passed between the filing of the Glen Oaks complaint and the court’s dismissal of it. One of the more interesting things about the Glen Oaks lawsuit is how much the ground had shifted under the plaintiffs’ feet during that period. For example, New York State released its final Scoping Plan under the CLCPA in December 2022, which, among other things, included an entire chapter highlighting the importance of coordinated action with local jurisdictions. “Partnership with local governments,” explained the Scoping Plan, “is a keystone of the State’s clean energy, adaptation and resilience, and greenhouse gas (GHG) emissions mitigation strategies” – a direct (if implicit) rebuke to plaintiffs’ assertion that the CLCPA pre-empted the CMA. As noted above, the Glen Oaks court was convinced that the two laws were not only consistent but should be read together. In addition, the Department of Buildings issued two sets of rules during the interim period that filled in many of the “vague” provisions of the law. For example, under the first set of rules issued in 2022, the DOB incorporated 61 different use-and-occupancy subgroups with different emissions factors for each, hopefully leading to more equitable and realistic emissions targets for covered buildings. With the newly issued “good faith efforts” rules, the DOB spelled out a detailed process by which building owners could seek to reduce or eliminate the annual fines issued for noncompliance during the 2024–2029 period. These rules underscore New York City’s position, contra the Glen Oaks plaintiffs, that building owners should have multiple viable compliance pathways short of just accepting massive annual fines. This decision is by no means the last word on legal challenges to Local Law 97. Not only is it expected that the Glen Oaks plaintiffs will appeal, but there will likely be new legal challenges once the DOB starts issuing fines to non-complying buildings in 2025. Nevertheless, this decision is a landmark in legitimating robust climate policy at the local level.
Read full articleFirst published: Jul 2024
Window DramaTAKEAWAY: This decision exemplifies some of the difficulties that condominiums may have in maintaining the building’s exterior envelope when the governing documents classify the windows as part of the unit and not part of the common elements. Window replacements are notoriously expensive and difficult to coordinate, and yet may be increasingly necessary as buildings age and energy efficiency compliance mandates ratchet up. In this case, the many apparent benefits of a coordinated building-wide replacement program were not enough to persuade the court to give the board dominion over the unit owners’ “private property.” This case may be distinguishable from other otherwise similar situations in that it appears that the board never made a finding that the plaintiffs’ specific windows were damaged or otherwise needed to be replaced. If the board had been armed with a finding from an engineer that these particular windows had failed, perhaps the unit owners could have been compelled to join the replacement program as part of their contractual duty to keep their apartment in good repair. Here, however, there were allegations in the record that the plaintiffs’ particular windows were in good condition.
Read full articleFirst published: Jun 2024
It’s Not My Manhole CoverChristian Jones, a California resident, sued Tower 53, its managing agent and Con Ed for personal injury and loss of consortium after tripping and falling over a Con Ed manhole cover, and the Appellate Division ruled that Tower 53 and its managing agent were responsible for maintaining the sidewalk.
Read full articleFirst published: Jun 2024
We Look Married, But Aren’tHarold Brunwasser and Roni Scharf bought an apartment at Murray Hill Mews in 2017, but the recording of the shares, stock certificate and proprietary lease was as Tenants by the Entirety, leading to a lawsuit over who owns the apartment.
Read full articleFirst published: Jun 2024
Old Alterations, New HeadachesThe court ruled in favor of Mr. Clauser, stating that he was not liable for the repair and maintenance of the French doors in his apartment, as he had never signed an agreement with the co-op or the previous owner.
Read full articleFirst published: May 2024
Dog DNAA co-op board failed to establish that a dog was a nuisance and that its breed restriction was relevant, as the dog did not behave in a dangerous or threatening manner and the board did not commence an action within the statutory three-month period.
Read full articleFirst published: May 2024
The Four-Year LeakThe plaintiff, a corporation, sued the board of managers of 580 Carroll Street for breach of fiduciary duty, negligence, and breach of bylaws, and the court found that the board was liable for breach of contract for failing to "promptly" repair the façade.
Read full articleFirst published: Apr 2024
Know When to FoldTAKEAWAY The most interesting part of this case involves the “seller’s concession” often used in New York to artificially boost the purchase price of co-op apartments. This practice is quite common, and is used so as to create higher comparables for the building. But this court sees through this practice, and seems to indicate that one cannot compare recent sales prices (which include concessions) to a third-party appraisal that reviews actual sales prices. Of course, it may be difficult for a court to ascertain which comparables in the appraisal included prices with concessions and which did not, but as noted by the court, this should be determined by a trial court. Further, this court indicates that it is not reasonable for a board to ever insist on a certain price, if the higher price it demands is established simply by creating the fiction of a “seller’s concession.”
Read full articleFirst published: Apr 2024
Panasia Estate, Inc. V. 29 West 19 Condominium Et Al.TAKEAWAY: The developer intends to appeal the case to the Court of Appeals, not only to reverse the fees award here but also for a ruling that RPAPL 881 does not empower courts to award reimbursement of professional fees in the first place. Such a ruling would be a significant change in the current law, and so this case should continue to be monitored closely. For practitioners, the Panasia case is a cautionary tale. By starting an 881 proceeding rather than just accepting the terms of the license agreement originally proposed by the neighbors (even though the developer considered those terms to be unfair), the developer only marginally improved the terms of the license fees originally proposed by the respondents, but at the cost of literally hundreds of thousands of dollars in legal fees and years wasted in litigation. It is not clear whether the current bill to amend Section 881, which has not passed the Assembly or been signed by the Governor, will significantly change the calculus for project owners looking to negotiate the terms of access or whether it would have made any difference in the outcome here.
Read full articleFirst published: Mar 2024
The Damage From LeadTAKEAWAY Particularly in buildings built prior to 1960, owners have an affirmative statutory duty to prevent or abate lead poisoning of children 7 years of age or younger. Boards cannot discriminate in renting to such applicants. Boards are well-advised to vigilantly be aware of who is occupying the premises. They cannot rely upon indemnification by the occupants or the representation that there are no children residing there. It is also important to train and require managing agents, doormen, lobby staff and other staff members to report the activity of tenants, guests, visitors and contractors that may be conducting improper activities and occupations in the building. The owners’ and managing agents’ notice of such activities, both licit and illicit, may be imputed with knowing and permitting such activities. They may be liable for the consequences, civilly and possibly criminally.
Read full article