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
- Board of Managers
- 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
- Contempt
- Contracts
- Conversion
- Damages
- Defamation
- Discovery
- Discrimination
- Due Diligence
- Easement
- Elections
- Estate
- Eviction
- Eviction/Termination
- Federal Courts Supplemental Jurisdiction
- Fiduciary Duty
- Fines
- Foreclosure
- Fraud
- Governance
- Ground Lease
- Gym
- Hoarding
- House Rules
- Housing Development Fund Corporation
- Indemnification
- Indemnification/Subrogation
- Injunction
- Inspection of Records
- Insurance
- Labor Law
- Liability of Directors
- Licenses
- Liens
- Maintenance
- Malpractice
- Management
- Mechanic's Lien
- Mediation
- 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
- RPAPL 881
- Sales
- Service of Process
- Sponsor
- Statute of Limitations
- Stock/Shares
- Stocks/Shares
- Sublets
- Succession Rights
- Tax
- Third-Party Liability
- Transfers
- Trespassing
- Trial Practice
- Veil Piercing
- Violations
- Warranty of Habitability
- Yellowstone Injunction
- Zoning
First published: Nov 2025
No Party for the Party WallTAKEAWAY Although the developer did not win, the law may soon shift in their favor. In June 2025, both houses of the New York State Legislature passed an amendment to Real Property Actions and Proceedings Law Section 881. If the Governor signs it, the new law would allow developers to ask a court for permission to install permanent encroachments, such as underpinning, when doing demolition or foundation work. This would be a major change — currently, courts can only grant temporary access. The new law is expected to face challenges, but it clearly tilts the balance toward developers. This case highlights why careful negotiation matters. The record in this case reveals some of the major concerns that may arise from an adjacent building’s construction including lack of adequate crack monitoring, rodent infestation, trespassing workers, attempted break-ins from the scaffolding, cancellation of the co-op’s property insurance on account of possible underpinning, and a major increase in insurance premiums going forward. It's important to be proactive. If a neighboring developer seeks access, boards should work closely with their attorney, architect, and engineer to negotiate the strongest possible license agreement. That agreement should ensure the developer reimburses the building for its legal and professional fees and includes protections for the property and residents. A well-drafted license agreement should address all of these risks — possibly including license fees, escrowed funds to cover ongoing costs, and clear procedures for handling any damage that occurs.
Read full articleFirst published: Oct 2025
No Unit — No Seat — No CaseTAKEAWAY Allegations of bad faith or breach of fiduciary duty require real evidence, not just dissatisfaction with a board’s actions. Courts are generally reluctant to interfere with decisions made within a board’s authority and in good faith, and the business judgment rule protects boards from having their decisions second-guessed so long as those decisions are rational, honest and serve a legitimate purpose for the building. This case underscores that a board’s careful adherence to its governing documents - coupled with professional advice from attorneys or other experts - provides a strong defense against legal challenges. For unit owners considering litigation, it’s important to remember that courts will defer to a board’s discretion unless there is proof of fraud, self-dealing, or other misconduct. And in this case Zihenni and his LLC had had no proof that the board acted in bad faith or beyond its authority.
Read full articleFirst published: Oct 2025
Was it a Trivial Sidewalk Defect?TAKEAWAY Personal injury cases are a subspecialty of litigation, subject to various rules, doctrines, and standards. Here, the condominium endured discovery, a half dozen motions, and five years of litigation before its attorneys were able to file a motion for summary judgment and dismissal based on the “trivial defect doctrine.” While the motion did not succeed, the litigation path and timing is fairly typical of a personal injury case. Here’s the good news and the takeaway: if this condo had liability insurance, as seems likely, then the litigation costs and defense were not paid by the condo—they were paid by the insurance carrier. The value of having good insurance is not that the carrier will pay out to an injured party, though that is obviously important. The real, practical value is that the carrier has a duty to defend the condo against lawsuits like this; the carrier will select attorneys with suitable expertise from its own “panel” of law firms; and the law firm’s fees will be paid directly by the carrier. As such, a good board will make sure that its condo or co-op community has a solid liability policy issued by a reputable carrier. A really good board will also keep an eye on the sidewalks, because it is easier to fix a tripping hazard than to engage in litigation.
Read full articleFirst published: Sep 2025
The Malfunctioning Overflow DrainTAKEAWAY Courts don’t let insurance companies get away with using overly narrow or confusing policy language to deny coverage. If the wording in an insurance policy is too vague for a condo board or policyholder to reasonably understand, a court may decide the loss should, in fact, be fully covered. That means if a condo disagrees with an insurer’s denial, it’s worth talking to legal counsel and, when necessary, pursuing the issue in court. Also, just because someone admits they caused an accident doesn’t automatically mean they are legally responsible - unless the act was intentional or malicious.
Read full articleFirst published: Sep 2025
A Drill Too FarTAKEAWAY This case is a warning for co-op and condo boards: even if bad renovation work was done by a previous owner, a new owner can still try to hold the board responsible if problems aren’t addressed. Here, the court allowed claims about noise and water leaks to move forward, finding they could amount to a nuisance tied to earlier faulty work. The decision shows why boards should always require proper alteration agreements for renovations and the importance of requiring that future owners assume the continued obligations of a previous owner under such alteration agreement.
Read full articleFirst published: Aug 2025
Single Me Out? Not So FastTAKEAWAY Here, the court recognized that individual board members should not be subjected to litigation simply for serving on a board. To hold board members personally liable, plaintiffs must allege with specificity that they committed wrongful, fraudulent, or tortious acts beyond their role as board members. The Business Judgment Rule protects board members from liability when they exercise business judgment within their authority. This protection can warrant dismissal of lawsuits at the pleading stage, even when all allegations in the complaint are accepted as true for purposes of the motion. Being named as a defendant in a lawsuit imposes significant burdens on individual board members. Underlying decisions such as this is the (often unstated) recognition that absent such judicial protections……no one will want or desire to serve on a cooperative or condominium board.
Read full articleFirst published: Jul 2025
The Big ‘Don’t’TAKEAWAY Once again, the corporate documents rule and dictate the outcome. Don’t add conditions that are not set forth in the by-laws. Don’t disenfranchise your shareholder’s ability to vote for properly qualified candidates of their choosing. Don’t try to rely on the business judgment rule to justify non-compliance with the by-laws or the proprietary lease.
Read full articleFirst published: Jul 2025
Sick, Sore, Lame & DisabledTAKEAWAY For boards who govern in buildings where third-party workers are performing services, there are three major concerns: liability, indemnity, and insurance. The first concern, liability exposure, arises because under current law it is presumed that a building owner is liable when workers fall from heights during construction or maintenance work, regardless of who actively caused the accident. Indemnity, the second concern, is in the form of a written contract term often found in the agreement permitting contractors to do work or employ workers in the premises. These contractual terms require the contractor to protect the owner against claims brought by injured workers. Essentially, the contractor agrees in writing to step in and defend the owner, covering legal costs and damages when workers seek compensation under laws like Labor Law § 240(1). This indemnity provision serves as the owner's first line of defense against worker injury claims. The third concern, insurance, is more problematic. Contractors typically provide an ACORD 25 Certificate of Insurance (COI), typically issued by the contractor’s insurance broker. These certificates appear to confirm adequate coverage, but they contain a critical flaw: they don't reveal policy exclusions and endorsements that could allow the insurance company to deny coverage. Even worse, the COI itself states that it cannot modify the actual insurance policy terms. The lesson for boards is clear: before allowing any work to begin, boards must go beyond the standard certificate of insurance. Either the board’s attorney or insurance broker must examine the actual insurance policy provided by the contractor. This review should verify that no exclusions or endorsements exist that would allow the insurer to disclaim coverage when protection is needed most. Only through this thorough policy review can boards ensure they have the protection they believe they've secured through their contracts.
Read full articleFirst published: Jun 2025
$9M on Ice While Flatiron Condo Fight Heats UpTAKEAWAY Even before a hotly contested litigation is fully adjudicated, a court may effectively punish a defaulting sponsor by depriving it, for an extended time period, of substantial profits from a sale of one or more of its units. When an inequity or impropriety is suspected, it will also step in and protect a Board of Managers against an allegedly unscrupulous sponsor. To assure a positive result, counsel for a Board of Managers should carefully review the offering plan and relevant documents, and present cogent evidence of a sponsor’s wrongdoing before a trial is scheduled so that the court can direct appropriate, albeit punitive, relief. While a $500,000 undertaking may also seem daunting, it is a small price to pay compared to the risk that sponsors' assets will be prematurely transferred, and/or inaccessible to the condo, making any victory meaningless.
Read full articleFirst published: Jun 2025
Bin Battle at 521 Park AvenueTAKEAWAY A storage bin (unless included in the definition of the unit) in a condominium is typically a common element. As such the unit owner using it has no proprietary right to it, and is granted the use of it only until the board takes it back. Rather than take a chance as to what a court might do, it is wise for any condominium board that allows a unit owner to use any common element to demand that a license agreement be signed by the unit owner. That document would set forth the rights and obligations of both parties. By doing so, the condominium can make it clear that it would have the right to terminate the use of the common element at any time. It should be noted that if a bin (or other property outside of the unit) is designated as a limited common element, the declaration and bylaws should be carefully reviewed as to the rights of the unit owner to use the property.
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