Case Notes by
William D. McCracken, Partner, Moritt Hock & Hamroff
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
- 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
- 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: 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: 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: 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: Dec 2023
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: May 2023
Ground Lease TsurisThis litigation dramatically illustrates some of the difficulties faced by ground lease co-ops and their shareholders. Most co-ops in New York City own the land on which their buildings are built, and most of those co-ops took title to the land at a time when property values were much lower than they are today. As a result, the equity in most co-ops resides in the individual apartments and are bought and sold among shareholders who can afford to pay premium prices for apartments. Ground lease co-ops, meanwhile, may include many shareholders who may not be able to pay the prices needed to acquire the land. It is no wonder that shareholders like the plaintiff are willing to go to court in hopes that a judge might relieve them of these difficult choices.
Read full articleFirst published: Feb 2023
The Unbearable Sound of NoiseThere are at least two important points to make about this unusual decision. First, the courts recognize the inherent noisiness of living in New York City and are not inclined to find a public nuisance just because the children in the apartment upstairs run around a lot. Second, condominium boards have broad powers and discretion when it comes to enforcing its own rules, but a board that effectively abdicates its enforcement responsibilities may not be protected from legal consequences. Taking the two lessons together, while it is reasonable for condominium boards to treat noise complaints skeptically as a general rule, they still need to take them seriously enough to show that the complaints were investigated.
Read full articleFirst published: Nov 2022
Fix My Condo!Newly constructed condominiums often have construction defects, and it is not uncommon for newly constituted condominium boards to sue their sponsor for contract and non-contract claims (such as fraud and fiduciary duty claims). It is equally common for the sponsor to move to dismiss those claims. In particular, sponsors and their representatives are often successful in dismissing fraud claims on the theory that those claims are really just duplicative of contract claims, but phrased in more “intimidating” language. The plaintiffs in this case were able to survive the motion to dismiss because they described specific building defects that the sponsor and its representatives were actually aware of and actively concealed or failed to address.
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