Case Notes in
2006
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
- 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 2006
Blumberg vs. AlbicoccoThis case is consistent with a number of prior co-op and condo decisions holding that a board’s power to fine a cooperative or condominium unit-owner for not paying or other objectionable conduct must be expressed in the governing documents of the entity – usually the proprietary lease or bylaws –- and will not be implied by the court. The solution is to amend the governing documents by the requisite vote of unit-owners to give a board the power to fine in specific instances.
Read full articleFirst published: Nov 2006
Forest Hills Realty Inc. v. Austin Sheppard Realty Inc.Despite the number of prior cases cited by the court, this case appears to be one of first impression involving the brokerage of co-op apartments. The decision is surprising because it is clearly anti-competitive and at variance with current practice in New York to encourage competition among real estate brokers to secure the best prices. Perhaps the broker sought relief on the wrong theory. Would the result be the same if a co-op shareholder brought an action against the board for restraining trade by allowing only one broker for the building? Doubtful.
Read full articleFirst published: Nov 2006
Silverman v. 875 Tenant Corp.This was initially an action brought by a shareholder against the co-op that was unsuccessful. As a result of the shareholder’s failure, the co-op sought to have the shareholder reimburse the co-op for its legal expenses as provided in the proprietary lease. The co-op succeeded and the case should be a warning to a shareholder who sues his or her co-op that, if the shareholder does not prevail, there is a good chance that he or she may end up paying the legal fees both for the shareholder and the co-op. Such fees may be quite substantial.
Read full articleFirst published: Jul 2006
1050 Tenants Corp. v. LapidusThe objectionable and undesirable characteristics of Lapidus appear self-evident. His dispute with the co-op has become a cause celebre in the co-op legal community. Here, the co-op properly followed the Court of Appeals-mandated requirements under both the seminal Levandusky case and its Pullman progeny, leaving the court little choice but to approve the co-op’s termination of the Lapidus tenancy for objectionable conduct. Increasingly, Pullman should be seen as a real wake-up call for any co-op shareholder who acts in an outrageous anti-social manner.
Read full articleFirst published: Jun 2006
Strax vs Murray Hill Mews Owners Corp.Under New York law, attorneys admitted to practice are entitled to brokerage fees for acting as a broker in real estate transactions without specifically holding themselves out as a broker. Here, the attorney-board member may not have been recognized initially as seeking a commission, especially when that person served on the board without compensation. The confusion of the two roles could have been avoided if the board member had asserted from the beginning her intention to seek a commission for services that other board members could otherwise reasonably have assumed were being provided without an expectation of compensation.
Read full articleFirst 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 articleFirst published: May 2006
Matter of Schapira vs. GrunbergWith the spring annual meeting season for most co-op and condominium entities to elect board members now in full bloom, this case provides helpful guidelines where such elections are disputed and sometimes quite contentious. The Whitehall has a long history of political infighting. Among the lessons of the case are: qualifications of directors are determined by the language of the bylaws; the role of the inspectors of election is limited and does not extend to interpreting the bylaws on board qualifications, and courts are reluctant to upset shareholder votes for fear of destabilizing the entity’s proper functioning, especially where it suspects the motives of the party seeking a new election.
Read full articleFirst published: Mar 2006
Realty Enterprise LLC vs. Hyde Park Owners Corp.This case reaffirms several established guidelines for co-op governance dealing with qualifications for the service of directors, holding annual meetings of shareholders and enabling shareholders to communicate with other shareholders to solicit proxies in advance of a shareholder meeting. Significantly, in this case, the board was able to restrict board service to shareholders and residents of the co-op. This is not always the best policy and in many co-ops a board would be unable to amend the bylaws to accomplish this policy without shareholder approval.
Read full articleFirst published: Mar 2006
Miller vs. 965 Fifth Avenue Owners Inc.The failure of the co-op in this case to promptly abate a mold condition of which it was aware and responsible to repair for several months ended up costing the co-op more than it would have if it had acted promptly. As a result, it was forced to incur not only its own legal expenses to deal with the abatement, but also those of its tenant-shareholder and the subtenant-occupant of the damaged apartment. The lesson here for co-op and condo boards and their managers is to promptly remediate mold conditions once they are disclosed. Delay only increases the cost of solving the problem and increases the legal expenses.
Read full articleFirst published: Jan 2006
315-321 Eastern Parkway Development Fund Corp. vs. Wint-HowellThe statutory warranty of habitability was enacted by the state legislature in 1975 to insure that all tenants, including co-op owners, could enjoy safe and comfortable housing and has been a potent weapon for tenants ever since by providing rent abatements when the statutory standard was not provided by landlord. Here, the co-op embarked on needed renovations to its property for the benefit of all unit owners. Since the work was necessary, under the Business Judgment Rule applied by the court, great deference was given to the decision of the board to undertake the repairs without requiring some sort of rent abatement for the inconvenience of a few unit-owners caused by the renovations.
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