Case Notes in
2005
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
- Service of Process
- 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 2005
Duran v. Essex House CondominiumThe issue here concerned who was in control of the space in a condominium building between the ceiling and floor of two units. Either it was part of the lower unit or it was within the common elements. The facts were in dispute. It is usually difficult to obtain a preliminary injunction because of the requisite burden of proof. In this case, the relief sought was denied leaving the plaintiff to establish at a trial on the merits his entitlement to such relief, requiring a more expensive effort.
Read full articleFirst published: Dec 2005
Latoni vs. Sherman Square Realty Corp.The case is not the last word on this matter and the results may change after discovery is permitted. However, it illustrates the plight of individual board members in considering apartment transfer applications. Without good legal advice, it is not difficult to run afoul of statutory prohibitions on discrimination against protected classes of individuals.
Read full articleFirst published: Nov 2005
Board of Managers of Holiday Villas Condominium I v. BautistaWhile the federal government may be seeking to facilitate the transmission of TV signals, the legislation to achieve this result limits the right of a subscriber to install a satellite dish to areas under the exclusive control of the subscriber. The law seeks to balance the right of the subscriber to receive the signal with the right of the condominium to control the use of common areas for the benefit of all unit-owners.
Read full articleFirst published: Nov 2005
DeSoignies v. Cornasesk House Tenants’ Corp.This case illustrates the ongoing conflict between a board’s power to enact house rules and shareholders’ rights to control fundamental changes that amount to a proprietary lease amendment requiring shareholder approval. It suggests that rule-making may be counterproductive when subletting requests can be reviewed and approved on a case-by-case basis without a lease amendment.
Read full articleFirst published: Oct 2005
Cohen v. Seward Park Housing Corp.To win a case on a motion to dismiss the complaint is not easy. The motion looks solely to the complaint and assumes that all of the statements therein are true. In such instance, trial judges are reluctant to grant the relief sought – preferring to view additional evidence to be developed in the case by both sides. A party making a motion to dismiss the complaint – not to be confused with a motion for summary judgment which addresses the complaint, the answer, and other evidence – usually must be highly confident of its legal position.
Read full articleFirst published: Sep 2005
Sit v. SchnapsThis case reaffirms established co-op law that a purchaser of an apartment that is approved subject to compliance with certain conditions may cancel the purchase agreement and receive a full refund of the contract deposit if those conditions are not met. This is a harsh and sometimes unexpected dilemma for a co-op seller who frequently has waited for many weeks to learn if a co-op board approves his purchaser. It suggests that a seller has a strong interest in seeing that his purchaser is well-qualified to acquire the apartment and likely to be approved by the board. This issue should be considered before a seller signs a sale contract.
Read full articleFirst published: Sep 2005
Litwack v. Plaza Realty InvestorsThe coincidence of the decisions in the two cases with different results led to reconsideration of the lower court case which was at variance with the one decided by the appellate division. As a result, the decisions were reconciled and the Litwack action was dismissed based on Beck. Despite this reconciliation, which provides that actual knowledge or notice of a mold condition itself is required to impose liability on a landlord, a landlord’s liability for mold conditions remains an emerging legal issue and further decisions can be expected. In the interim, steps can be taken by co-op and condo managers and boards to control both damage and liability. Preventive maintenance and prompt and appropriate remediation, using experienced specialists where indicated, are key. Identifying and repairing the source of water leaks will prevent recurrence
Read full articleFirst published: Jul 2005
Madison Medical Building v. Properties & Equities International Ltd.It is obvious that the condominium board here did not want a Subway restaurant in the building. The board raised all types of objections to bar the restaurant's opening - none of which the court found to have merit. There was no danger to the building or its occupants. The ultimate remedy for the board would have been to exercise its right of first refusal to lease the premises intended for Subway. Of course, that would have required some risk and expenditure for the board that it was seeking to avoid. With the cost of litigation factored in, it might have been smarter for the board to have exercised the right of first refusal in the first place.
Read full articleFirst published: Jun 2005
Beck v. J.J.A. Holding Corp.This case suggests that a landlord must have actual knowledge and an opportunity to cure a mold condition before it has liability to a tenant claiming illness from mold. As this is still an emerging legal issue, further cases on the extent of a landlord’s liability for a mold condition can be expected.
Read full articleFirst published: Jun 2005
Litwack v. Plaza Realty InvestorsThe court here refused to dismiss the mold illness claim against the landlord before further evidence was introduced on the causal connection between the mold condition and the illness. The issue was one of the landlord’s knowledge of the mold condition. The court was not prepared to dismiss the tenant’s claim because the court believed that persistent water leaks might result in a landlord’s having constructive notice of a mold condition.
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