CNYC president Marc J. Luxemburg, Esq. is an attorney specializing
in cooperative and condominium law. In each issue of the
CNYC Newsletter, he reviews recent court cases that have
the potential to answer questions commonly faced by boards
of directors as part of their responsibilities. At last
year's CNYC Housing Conference, Mr. Luxemburg presented
his annual review of the year's significant legal decisions.
The following article features highlighted cases from his
Charging a penalty for exceeding the time allowed
by the board for completing an alteration of an apartment
continues to generate controversy. In Behler v. Ten Eighty
Apartment Corp., NYLJ, 4/11/01 p. 18, c. 4 (Sup. Ct. NY
Co.), the alteration agreement provided for a charge of
$100 per day until the authorized time limit, and $500 for
each day after. The Behlers exceeded the limit, and they
claimed that in calculating the $32,000 of overtime alteration
fees, the cooperative did not consider factors such as whether
the delays were beyond the Behlers' control, that work could
not be performed during most of the period, and that there
was no relationship between the delay and any costs or expenses
borne by the cooperative. The court reviewed the law relating
to "liquidated damages" (in which a fixed amount
is set as damages rather than an amount based on actual
provable expenses), and found that unless the fee is reasonable
in relation to possible costs resulting from the breach,
it becomes a prohibited "penalty." The court found
that while the $100 per day fee during the authorized period
was a reasonable out-of-pocket estimate of the damage to
the cooperative, the $500 per day overtime rate was disproportionate.
Thus, the cooperative was not able to the prove the actual
damages because of the way the alteration agreement was
In O'Dell v. 704 Broadway Condominium, 728 NYS2d 464 (1st Dept. 7/26/01),
the unit owner wanted to create an exterior balcony a process
involving the creation of an alcove via drastic demolition and reconstruction
of the exterior wall approximately eight feet in from its previous location
and build a terrace extending out five feet. The owner submitted
a proposal before buying the unit, and got the president's approval.
The board president signed a letter, agreeing to the alteration. After
the unit owner bought the unit, he again submitted his plans to the
president, who signed them. Later, the unit owner wrote another letter
to the board outlining his various submissions and asking the president
to indicate that the submitted work had been reviewed and approved;
the president signed that letter, too. However, once work started, the
other board members were shocked at what was being done. The unit owner
then presented what he was in the process of doing at a board meeting,
only to have the full board reject it.
The unit owner decided to continue with the alterations notwithstanding
what the board said, and brought an action against the board saying
he had a right to proceed based on the approvals by the president. The
court said that as far as the condo itself was concerned, the unit owner
had a right to proceed because the project had the approval of the president,
who, as chief executive, had the power to perform any act which the
directors could authorize or ratify. The test is whether he was engaged
in the discharge of the general duties of his office; the question of
whether he actually had authority to sign what he signed is irrelevant.
The court found that this general proposition applied, notwithstanding
a statement in the bylaws that all "agreements," contracts,
deeds, leases, checks or other instruments of the condo shall be executed
by two officers, or such persons as may be designated by the board.
Approval of the application to the Buildings Department and signing
of these letters did not constitute an "agreement," notwithstanding
that the condo was bound by it. And, said the court, approval of the
alteration, be it on a common area or a unit, was not an "agreement"
requiring two signatures.
It was also argued that under New York Condominium Law, the consent
of the owner of the unit underneath the proposed alcove/ balcony was
needed. The court decided to hold a trial to determine if this particular
owner's consent was in fact needed. This case was still ongoing at the
time of Mr. Luxemburg's presentation; a trial is required as to whether
creation of the balcony was a "material alteration" that required
the neighbor's consent.
Labor Law §240 continues to cause headaches for cooperatives. In
Pastrana v. 300 Central Park West Apartments Corp., NYLJ 12/21/00, p.
30, c. 3 (Civ. Ct. NY Co.), an apartment owner hired a contractor to
do renovations, who hired an employee to do the work. This employee
fell off a ladder while stripping molding off the ceiling inside the
apartment. Although the renovation was only on a single apartment, and
the cooperative had no connection with the employee, the cooperative
is liable to the employee for his injuries under Labor Law §240.
The apartment owner is exempt from liability, despite having hired the
contractor whose employee was up on the ladder. The contractor is not
liable either, due to workers compensation. As only the cooperative
was liable, this case demonstrates that cooperatives should be insured
for incidents such as this. In addition, an alteration agreement with
an indemnity clause is important, so that the liability can be transferred
back to the owner. In this case, the employee's suit against the owner
was dismissed but the cooperative's claim against the owner under the
alteration agreement survived. Thus, this case shows the need for an
alteration agreement even for very minor work.
SPONSORS: Right To Sell
-- Paikoff Revisited
General Business Law §353-eeee (2)(c)(ii) says a tenant entitled
to possession who has not purchased under the offering plan, or a person
to whom a dwelling unit is rented subsequent to the effective date of
the plan, is protected against eviction by the unit owner so long as
the unit owner is not a purchaser under the plan.
In the following two cases, the respective plaintiffs had each rented
an apartment from a sponsor after the plan closed and the sponsor sought
to end their tenancies. However, these two similar cases had two completely
In Park West Village v. Nishoika, 721 NYS2d 459 (Sup. Ct. App. T. 1st
Dept. 10/26/00), the plaintiff leased an apartment from a sponsor five
years after the plan closed, but while there were still unsold shares
outstanding. The plaintiff signed a two-year lease. The question this
case poses is whether the sponsor can evict the tenant (whose apartment
is neither rent controlled nor rent stabilized) when the lease is up.
At this point, seven years have passed since the plan closed.
According to the Appellate Term 1st Department covering Manhattan and
the Bronx, the statute does not protect a person who rents from a purchaser
after the conversion has closed. The court found that a sponsor who
was holding unsold shares is a purchaser under the plan.
The court said that the statute was only intended to protect people
who were in place at the time the plan was put into effect existing
tenants who opted not to purchase. Since this will facilitate sales
of apartments by the sponsor and accurately reflects the law's history,
it seems to be the better approach.
The Appellate Term 2nd Department, in Geyser v. Maran, NYLJ 7/18/01,
p. 21 c. 4 (Sup. Ct. App. T 2nd Dept.), faced a very similar situation
but came to the opposite decision: that the sponsor, as a holder of
unsold shares, is not a purchaser under the plan, reasoning that it
makes no sense to say that an apartment has been purchased when it is
by definition unsold. Therefore, if the statute is read
literally, anyone who rents an unsold unit is protected, and has a guaranteed
right to perpetual lease renewals.
The 2nd Department case very pointedly criticized the 1st Department
for not strictly reading the statute the way it was written, and said
the tenant is entitled to perpetual protection. However, this tenant
actually lost its case, because the court noted that the particular
offering plan had been declared effective before the statute was amended;
it therefore determined that the statute did not apply to this plan
and thus this tenant was not entitled to those protections.