View all case notes
Case Notes in

Access

Category
Author
Select Year
First 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 article
First published: Oct 2023
How Many Times Do I Have to Ask?

TAKEAWAY Section 881 of New York’s Real Property Actions and Proceedings Law was enacted in 1968. It was designed to address the needs of building owners who needed access to a neighboring property so they could perform improvements or repairs to their own property. Building owners turn to RPL 881 when access can’t be agreed upon amicably, or in the case of the Columbus House, when an access request isn’t even acknowledged. RPL 881 provides a legal framework for obtaining court orders to gain access to a property. Co-op & condo boards should pay attention to FISP timetables, particularly if an access agreement is necessary. Note that Columbus House began requesting access in May 2022, and finally received a court decision granting it nearly 15 months later.

Read full article
First published: Mar 2023
Access: How Much Are You Offering?

When sidewalk bridging (or other protection or scaffolding) must be installed on adjacent property, the property owners must negotiate an access agreement. But if the parties cannot agree on the terms of the agreement, the law permits the party needing access to bring a special proceeding under RPAPL §881, and the court will then decide what is reasonable. In light of the fact that no one can predict what a judge might do, it is best for both sides to be reasonable and to work hard towards an agreement that is fair to both parties. This is especially true when the value of property is easily ascertained, as was the case here, and where the monthly rent received was certainly a good indication of the value of the property per month.

Read full article
First published: Jun 2011
Carpenter v. Churchville Greene Homeowners’ Association Inc.

The court first made clear when discussing the concrete pad that, once an issue is resolved with no likelihood that it will recur, the matter is no longer actionable. We suspect that this is particularly the case in this instance as the matter was resolved within three weeks of plaintiffs’ request that they be permitted to install the concrete pad and that no ascertainable damages accrued during that period. With respect to the parking issue, the court noted in a footnote the plaintiffs’ burden – specifically that allowing disabled guests to park close to their home is “necessary for the equal use and enjoyment of their home in light of their own disabilities …” We question whether the plaintiffs will be able to meet this burden as it is their friends – and not the plaintiffs themselves – who apparently require a parking accommodation. Interestingly, although the HOA denied the request based on fire safety concerns, the decision does not indicate that the defendants presented any evidence that parking on the private road would constitute a violation of an applicable fire code. We question whether if this were the case, it would have affected the court’s determination. In sum, the court gave the plaintiffs an opportunity to prove their claims by allowing them to take the depositions of the individual board members and management company. The court also gave the defendants the right to make another motion for summary judgment at the conclusion of those depositions, i.e., after the plaintiffs had an opportunity to obtain the information they said they needed. Finally, while this case involved an HOA, the legal principles at issue here would apply if the property was either a co-op or a condominium.

Read full article
First published: Jun 2011
Carpenter v. Churchville Greene Homeowners’ Association Inc.

The court first made clear when discussing the concrete pad that, once an issue is resolved with no likelihood that it will recur, the matter is no longer actionable. We suspect that this is particularly the case in this instance as the matter was resolved within three weeks of plaintiffs’ request that they be permitted to install the concrete pad and that no ascertainable damages accrued during that period. With respect to the parking issue, the court noted in a footnote the plaintiffs’ burden – specifically that allowing disabled guests to park close to their home is “necessary for the equal use and enjoyment of their home in light of their own disabilities …” We question whether the plaintiffs will be able to meet this burden as it is their friends – and not the plaintiffs themselves – who apparently require a parking accommodation. Interestingly, although the HOA denied the request based on fire safety concerns, the decision does not indicate that the defendants presented any evidence that parking on the private road would constitute a violation of an applicable fire code. We question whether if this were the case, it would have affected the court’s determination. In sum, the court gave the plaintiffs an opportunity to prove their claims by allowing them to take the depositions of the individual board members and management company. The court also gave the defendants the right to make another motion for summary judgment at the conclusion of those depositions, i.e., after the plaintiffs had an opportunity to obtain the information they said they needed. Finally, while this case involved an HOA, the legal principles at issue here would apply if the property was either a co-op or a condominium.

Read full article
First published: Oct 2009
Leschins v. 3777 Independence Corp.

It was undisputed that Goodman was the co-op’s managing agent. A managing agent working on behalf of a co-op could not be held liable unless there was clear and explicit evidence that it intended to make itself personally bound. There was no evidence that Goodman ever intended to be personally and separately bound for any action it took. The court noted that an agent would not be exempt from liability if it acted outside the scope of its authority; however, Leschins presented no factual support for this theory. This case reminds us that the law will not help a shareholder who fails to comply with his or her obligations under the proprietary lease. Plaintiff attempted to obtain money damages from the co-op because there was water damage in his apartment. However, it was clear that the co-op was willing to make the repairs, but that plaintiff would not grant it access. The court reviewed the parties’ rights and responsibilities under the proprietary lease and the Business Judgment Rule and determined that the co-op’s obligation to repair was contingent on plaintiff’s obligation to provide access. Importantly, the court held that the shareholder could not dictate the method or manner of repair. The co-op had the right to determine how the repairs were to be made, particularly since it retained experts and was relying on their advice. The case also reminds us that managing agents will not be liable for acts taken in their capacity as managing agent. A managing agent will only be liable if its actions evidence an intent to be separately responsible or if it acts outside the scope of its authority.

Read full article
First published: Sep 2007
Graber vs. Sheridan

The 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 article
First published: Jun 2006
Matter of Schwarz vs. Dorchester Apt. Corp.

This is another case in the long line of decisions sustaining board action under the Business Judgment Rule when challenged by a shareholder. New York law is very clear that courts will grant broad deference to action by a co-op or condo board where the board acts within the guidelines of Levandusky and Pullman. Courts in New York do not usually second-guess board actions. However, the court here stopped short of awarding legal fees in favor of the co-op.

Read full article
First published: Jan 2004
Trepel v. Diop

By Richard Siegler, Stroock & Stroock & Lavan This case reveals that a court will enforce a shareholder’s agreement given to induce a co-op to permit the transfer of shares and a proprietary lease to that person which in some manner restricts the use or occupancy of the apartment. Here, the court permitted only such access as was needed to sell the apartment, but without providing a key that would have afforded unlimited access to the apartment by the shareholder.

Read full article

© 2022 The Carol Group, Ltd. All rights reserved