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
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- Attorney Fees
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- Balcony/Terrace Rights
- Bike Lane
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- Negligence
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- Proprietary Lease
- Reasonableness
- Receivership
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- Trial Practice
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- Yellowstone Injunction
- Zoning
First published: Oct 2007
Hirschmann vs. HassapoyannesThis co-op board appears to be in trouble and without a good basis to justify its withdrawal of its approval of the purchase applications. This is a case where sound legal counsel before the board withdrew its approval might have led to a different result and less liability exposure for the board members involved.
Read full articleFirst published: Sep 2007
Zipper vs. Haroldon Court CondominiumThis is a clear case where the appellate court strongly disagreed with the conclusion of the trial court. Although lower courts are usually reversed on legal errors, the reversal here seems based in large measure on the facts: a strongly divergent view of the impact of the stench and odors and an evaluation of the extent of the odor level that constituted a nuisance.
Read full articleFirst published: Sep 2007
Graber vs. SheridanThe Business Judgment Rule remains the controlling precedent for judicial review of unit-owner challenges to a condominium board action. Under the rule, judicial deference is given to board determinations so long as the board acts within the scope of its authority, in good faith, and in the lawful and legitimate furtherance of the condominium’s purpose. This is another in a long line of cases that makes the challenge of a board’s action very difficult.
Read full articleFirst published: Sep 2007
Medows vs. SternAlthough this was not a final decision on the merits, the court was loathe to dismiss the complaint without a further review of the facts. So, the decision is a victory for the plaintiff and may be useful in achieving a settlement between the litigants rather than lead to a prolonged and costly exercise in discovery, further motion practice, and, worst case, a trial.
Read full articleFirst published: Jul 2007
Sassi-Lehner vs. Chariton Tenants Corp.This decision undercuts the ruling of New York’s highest court in the recent Kralik case, which recognized the broad contractual rights of holders of unsold shares in the face of regulations of the attorney general that sought to limit them. Here, the co-op’s offering plan had been amended in 1990 to require a holder of unsold shares to be designated by the sponsor – a requirement derived solely from the attorney general’s regulations – and this expanded definition in that plan was seized upon by the court to invalidate the claim of holders of unsold shares.
Read full articleFirst published: Jun 2007
1050 Tenants Corp. vs. LapidusThis appears to be the last in a long series of decisions involving the co-op at 1050 Fifth and the Lapiduses over a variety of issues related to the defendants’ occupancy and conduct in the co-op. Prior decisions have been the subject of earlier “Case Notes.” Here, the co-op’s patience with the Lapiduses’ repeated objectionable conduct was at an end, and it invoked the Pullman decision to validate its lease termination. This case is the latest progeny of Pullman and is further evidence of what a potent weapon this decision has become for co-op boards when faced with seriously objectionable conduct.
Read full articleFirst published: Jun 2007
Estate of Angela SchillerIf the amounts sought in this case were not disputed, or at the least easily calculable under some specific provision of the co-op’s bylaws or proprietary lease which give the co-op the right to impose a specific item, for example, a late fee, a sublet fee, or a transfer fee, the court would have upheld such payment as a precondition to the transfer. However, in this case, where the amounts were unliquidated, speculative, and disputed, the court refused to give the co-op an advantage by requiring the requested payment. This will require further legal action. The issue might be changed in the future by a proprietary lease amendment giving the board specific authority to charge amounts in certain disputes with shareholders.
Read full articleFirst published: Apr 2007
Lisenenkov v. KaszirerThis is another example of a board seeking to exceed its authority. Here, a condominium board was trying to impose requirements on a prospective apartment purchaser because it was uncertain about the ability of such purchaser to pay his shares of the common charges for the building. The only problem was that the board’s solution – an advance payout of two years of common charges – was beyond the board’s powers. So, when challenged, the court determined that the requirement was invalid and this condo board was forced to realize that it was not a co-op board, which usually has the power to require a purchaser to provide a security deposit.
Read full articleFirst published: Mar 2007
Poyck v. BryantThis is a case of first impression and may signal the first of many cases that could lead to severe restraints on the ability of co-op owners to smoke in their apartments, especially when neighbors complain of tobacco odors. While secondhand tobacco odors have long been viewed as a nuisance, they are now being treated as a health hazard that may be regulated. Boards must be vigilant to this hazard and act to remedy what may now be viewed as a breach of the warranty of habitability. That switch carries real consequences for a board.
Read full articleFirst published: Jan 2007
Colin Fraser v. 301-52 Township Corp.This decision is helpful for owners of residential property in New York, including cooperative and condominium boards. It firmly establishes the view that mold concerns in apartment buildings – the latest environmental issue of the past 30 years – are unlikely to have the same impact as have such prior environmental issues as asbestos and lead-based paint. Mold is not as serious a health hazard as has been suggested elsewhere. Of course, the presence of mold in water-damaged environments still must be remediated expeditiously to mitigate property-damage claims. Nonetheless, until there is an appellate decision on personal injury from mold, it would be wise to view this decision cautiously. It is not the last word.
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