Hirsch v. Morningside Park Condominium

Hirsch v Morningside Park Condominium

2024 NY Slip Op 33666(U)

October 15, 2024

Supreme Court, New York County

Docket Number: Index No. 157762/2017

Judge: Margaret A. Chan

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.

FILED: NEW YORK COUNTY CLERK 10/16/2024 04:26 PM INDEX NO. 157762/2017

NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 10/16/2024

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 49M

--------------------X

HIRSCH, ERIC INDEX NO. 157762/2017

Plaintiff,

MOTION DATE 10/12/2023

- V-

MOTION SEQ. NO. MS003

MORNINGSIDE PARK CONDOMINIUM et al.

Defendants. DECISION+ ORDER ON

MOTION

--------------------X

HON. MARGARET A. CHAN:

The following e-filed documents, listed by NYSCEF document number (Motion 003) 79, 80, 81, 82, 83,

84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99,100,101,102,103,104,105,106,107,

108,109,110,111,112

were read on this motion to/for JUDGMENT-SUMMARY

In this action relating to water damage in a condominium caused by a burst

water pipe in a Packaged Terminal Air Conditioner (PTAC) device, defendants

Morningside Park Condominium (Morningside), The Board of Managers of

Morningside Park Condominium (Board), and the Andrews Organization (together

with Morningside and the Board, "defendants") 1 move for summary judgment

pursuant to CPLR 3212. Plaintiff opposes. For the reasons below, the motion is

denied in part as to the breach of contract claim but granted in part as to the claims

of constructive eviction, return of common charges, and negligence.

Background

Plaintiff owns condo Unit 1 ("the Condo") within the Morningside Park

Condominium, located at 18 Morningside Avenue, New York, NY 10026 ("the

Building'') (NYSCEF # 9, Complaint, ,r 1). Defendant Morningside is an entity

organized under New York State law through a Declaration of Condominium dated

March 26, 2007, and By· Laws filed on July 17, 2007 (id ,r 2). Morningside is

managed by defendant Board, while defendant the And~ews Organization "is the

1 The Andrews Organization, the Morningside Park Condominium, and the Board of Managers are

the only remaining defendants left in the case. All other defendants were voluntarily discontinued

(see NYSCEF # s 12, 39). .

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Motion No. 003

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managing agent for the [Board] and [is] responsible for managing the [Building]"

(id ,r,r 2·3).

Relevant By-Laws and Responsibilities

Unit-owners and the condominium itself have different responsibilities

regarding repair and maintenance of the building. There is no legitimate dispute

that unit-owners are responsible for care over Packaged Terminal Air Conditioner

(PTAC) devices-the device that allegedly caused the damages in this case-in their

units. Per Morningside's By-Laws, unit-owners are responsible for "maintenance,

repairs, and replacements" of certain components in their units-including the

PTAC device (see NYSCEF # 93, Offering Plan & By-laws, at *208 [By-Laws Article

VI, Section 7] ["All maintenance, repairs, and replacements to ... air conditioning

units within the Unit or belonging to the Unit Owner shall be made at the Unit

Owner's expense ... "]). Moreover, when asked during deposition if the PTAC

devices are the unit owner's responsibility, plaintiff testified that "it was

communicated to me that those are the individual unit owner's responsibility, but I

haven't necessarily formally made that decision myself' (NYSCEF # 89, Pltf s Tr. at

239:10-16).

However, unit·owners are not responsible for "Common Elements," which are

the defendants' responsibility alone (see NYSCEF # 93 at *208 [excluding

"electrical" and "plumbing'' Common Elements]; see also id. at *201 [defining the

Board's powers and responsibilities to care for Common Elements]). According to a

Condominium Offering Plan, "General Common Elements" include, among other

things:

(3) All central and appurtenant installations for services such as

power, light, air-conditioning (if any), intercom, telephone, television,

gas, hot and cold wat.er, heat (including all pipes, ducts, wires, shoots,

cables, and conduits used in connection therewith) and all other

mechanical equipment spaces.

(4) Wat.er service pipes and sewer pipes

(NYSCEF # 93 at *15 [Offering Plan§ 2(A)(3)-(4)] [emphasis added]).

Plaintiffs Condo and Damages

Plaintiff became the owner of the Condo through a deed dated November 9,

2007, which was recorded and filed in the New York City Department of Finance,

Office of the City Register, on December 28, 2007 (NYSCEF # 9 ,r 16). The building

was a brand·new construction in 2007, and a PTAC device was installed in

plaintiffs master bedroom (NYSCEF # 101, Pltf.'s Resp. to Defs.' Stmt. of Undisp.

Facts, ,r 2).

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Motion No. 003 ·

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Plaintiff never moved into his Condo. He alleges he intended to use the

Condo as his primary residence but was unable to do so due to ongoing construction

defects and plumbing issues (NYSCEF # 9 ,r 17). More specifically, plaintiff alleges

that his Condo suffered significant damage due to construction defects and

negligent maintenance of the condominium's common elements, including water

service pipes, sewer pipes, foundations, columns, beams, supports, bearing walls,

and portions of the exterior walls and insulation (id ,r 18).

Plaintiff alleges that on or about August 31, 2015, the Condo sustained

extensive damage when an extreme amount of wastewater and sewage backed up

and expelled into the unit due to plumbing defects and a failure to maintain the

system properly ("the Back Up") (id ,r 19). The Back Up rendered the Condo

completely uninhabitable (id).

Following the Back Up, plaintiff discovered widespread mold caused by leaks

in the exterior wall and/or membrane of the building, which had existed for an

undetermined period (id. ,r 20). Additionally, extensive water damage was found in

the walls and ceilings, attributed to internal leaks and plumbing problems within

the common elements (id). Plaintiff asserts that the condominium is solely

responsible for maintaining these elements, as stipulated in the Declaration and

By-Laws (id ,r 22). Despite notifying the condominium of similar plumbing issues

since December 2013, which were promised to be repaired, plaintiff claims that

defendants failed to make adequate repairs, leading to the extensive damage

experienced during the Back Up (id. ,r,r 20 - 25).

Plaintiff brought this action on August 30, 2017, bringing claims of breach of

contract, constructive eviction and return of common charges, and negligence (id. ,r,r

27-48). Defendants now move for summary judgment, arguing that the damage to

plaintiffs Condo was actually caused by a February 2015 failure of the PTAC

device. Specifically, defendants argue that plaintiff failed to heat his apartment in

February 2015, causing the PTAC's pipes to freeze and burst, thereby causing water

damage. There is no dispute that the PTAC failed, nor any dispute that the PTAC's

failure damaged the underneath ceiling, recreation space ceiling, and floor of the

master bedroom and recreation space (NYSCEF # 101 ,r 3 ["Plaintiff admitted that

water and steam from the PTAC failure damaged the areas indicated in Paragraph

3"]).

Parties' Arguments

Defendants argue that plaintiffs property damages claims2 should be

dismissed because plaintiff was responsible for the PTAC device. Regarding the

PTAC device, defendants argue that the By· Laws give unit-owners responsibility for

maintenance and repair of PTAC devices (NYSCEF # 95, Defs MOL, ,r,r 10·15).

2 Jt is unclear what claims defendants refer to here because plaintiffs only claims are for breach of

contract, constructive eviction, and negligence.

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Motion No. 003

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Defendants argue plaintiff, who never resided in his Condo, left it unheated in

February 2015, causing the PTAC's pipes to freeze and burst, thus leaking water

and causing damage (id ,r 16). Defendants point out that no other apartments

reported similar issues with their PTAC units, as those apartments were

adequately heated and maintained, preventing their pipes from freezing (id, citing

NYSCEF # 90, Fred Scott Tr. at 77:10-16). 3

Defendants also argue that the constructive eviction claim must be dismissed

because plaintiff never actually resided in the Condo, which bars his recovery under

the case law (id ,r 24, citing Frisch v Bellmarc Mgmt., Inc., 190 AD2d 383, 390 [1st

Dept 1993] and Transus LLC v Beach Vi'ew Apartment Corp., 72 Misc 3d 129[A]

[unreported, App. Term 1st Dept. 2021]). Defendants further assert that the

statutory warranty of habitability does not apply to condominium unit owners who

purchased their condos as investments and never resided in them, nor can owners

withhold payment of common charges due to defective conditions or board

disagreements.

Defendants argue that plaintiffs breach of contract claims should be

dismissed because defendants acted in good faith to try to fulfill their contractual

obligations. For example, defendants argue they "hired an expert to conduct mold

testing and/or remediation," but were prohibited from accessing the Condo by

plaintiff (id ,r,r 32-33, citing NYSCEF # 90 at 74:15_75:12).

Finally, defendants argue that plaintiffs negligence claim should be

dismissed as duplicative of the breach of contract claims. Defendants assert that the

damages claimed by the plaintiff are clearly within the scope of the written

agreement between the parties (id ,r,r 38-39). Defendants argue that plaintiff has

not demonstrated any negligence on defendants' part that is separate from the

contractual issues already addressed (id). Therefore, the negligence claim is

redundant and should be dismissed, as it fails to m~et the legal requirements for a

separate tort action.

Plaintiff responds that defendants failed to present admissible evidence to

establish entitlement of summary judgment, that there are genuine issues of

material facts in dispute, and that plaintiff has sufficiently alleged a cause of action

for negligence. Plaintiff argues that defendants mischaracterize testimony from the

depositions of plaintiff, Fred Scott (the President of the Board of Managers), and

Fihlo Thomas (an employee of The Andrews Organization, the property managers

for the condominium) (NYSCEF # 100, Pltf s Response, at 5-9). Plaintiff also argues

s Defendants also argue that other sources of damage are plaintiffs own fault, but it is unclear what

if any relevance those arguments have to this case. Defendants assert that the By· Laws give unit·

owners responsibility to maintain their private backyards, and that any property damage resulting

from the failure to maintain a backyard drainage system is directly attributable to the plaintiffs

negligence in maintaining their backyard (id. ,r,r 20-22). However, plaintiff does not appear to make

ariy claims or allegations about a backyard drainage system.

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that the cited excerpts do not support defendants' arguments and, in some cases,

contradict them (id). Plaintiff also argues that defendants' attorney affirmation,

which was filed alongside defendants' memorandum of law and statement of

material facts, is a description of facts from someone lacking personal knowledge,

and therefore holds no evidentiary value (id at 4·5, citing Thompson v Pizzaro, 155

AD3d 423 [1st Dept 2017]).

Plaintiff contends that there are significant questions regarding both the

cause of the PTAC unit failure and the extent of the resulting damage. While

defendants acknowledge some responsibility for past water-related losses in the

plaintiff's condo, they argued that all damages can be attributed to the plaintiff's

failure to heat and the subsequent PTAC failure. Plaintiff contests this narrative,

highlighting the lack ofcertainty about the cause of the PTAC's failure in deposition

testimonies, as well as his affidavit claiming he had a habit of inspecting his Condo

(id at 10· 12, citing, e.g., NYSCEF # 90 at 76=22 [Scott testifying that there was "a

lot of steam ... a lot of heat" from the PTAC flood] and NYSCEF # 102, Pltfs A$.

Moreover, plaintiff provides a 2011 report from Dynamic Structures Inc., which

warned Morningside that mechanized valves connected to the PTACs must be

replaced or else risk damage if pipes became too cold (NYSCEF # 100 at 11·12).

Plaintiff also argues defendants were negligent because they were aware of

defective valves within the building and neglected to take corrective action, leading

to substantial property damage (id. at 14). Plaintiff argues that the defendants had

actual notice of these issues since August 2011 but did not address them,

demonstrating negligence (id).

Defendants reply that plaintiff's negligence claim fails because it arises from

the same conduct as the breach of contract claim and alleges no distinct damages.

They assert that a negligence claim is not valid if it merely duplicates breach of

contract allegations without demonstrating an independent legal duty. Citing

precedents, defendants contend that the plaintiff's negligence claim is essentially a

rephrasing of the breach of contract claim and thus should be dismissed.

Legal Standard

A party moving for summary judgment must make a prima facie showing

that it is entitled to judgment as a matter of law (see Alvarez v Prospect Hosp., 68

NY2d 320,324 [1986]). Failure to make such a showing mandates denial of the

motion, regardless of the sufficiency of the opposing papers (see Ayotte v Gervasio,

81 NY2d 1062, 1063 [1993]; Winegrad v N. Y. Univ. Med. Ctr., 64 NY2d 851, 853 ·

[1985]). Only once a prima facie showing is made does the burden shift to the party

opposing the motion to produce evidentiary proof, in admissible form, sufficient to

establish the existence of material issues of fact which require a trial of the action

(see Zuckerman v City ofNew York, 49 NY2d 557, 562·563 [1980]). On a motion for

summary judgment, facts must be viewed in the light most favorable to the non·

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moving party (see Vega v Restani Constr. Corp, 18 NY3d 499, 503 [2012)). Although

summary judgment is "considered a drastic remedy," "when there is no genuine

issue to be resolved at trial, the case should be summarily decided" (see Andre v.

Pomeroy, 35 NY2d 361, 364 [1974)).

Discussion

L Breach of Condominium Ev-Laws

Plaintiff sues defendants for breach 9f contract on the theory that they

breached the By-Laws by failing to "maintain, repair, and/or replace the plumbing,

exterior walls, and other Common Elements" damaged by both the Back-Up and

"leaks in the exterior wall" (NYSCEF # 9 ,r 30).

It is well settled that "the administration of the condominium's affairs is

governed principally by its bylaws, which are, in essence, an agreement among all of

the individual unit owners as to the manner in which the condominium will operate,

and which set forth the respective rights and obligations of unit owners, both with

respect to their own units and the condominium's common elements" (Bd of

Managers ofVill View Condo. v Forman, 78 AD3d 627, 629 [2d Dept 2010)). "A

violation of bylaws is akin to a breach of contract" (Pascual v Rustic Woods

Homeowners Assn, Inc., 134 AD3d 1003, 1005 [2d Dept 2015], citing Pomerance v

McGrath, 124 AD3d 481, 482 [1st Dept 2015]; Stony Brook Shores Prop. Owners

Assn, Inc. v Liscia., 169 AD2d 712, 713 [2d Dept 1991)).

In the present case, the By-Laws of Morningside Park Condominium govern

the obligations, responsibilities, and relationships between the defendants and the

individual condo owners, including the plaintiff. Per Article VI, Section 7, plaintiff

has responsibility to maintain "air conditioning units" like the PTAC (NYSCEF # 93

at *208). Defendants have responsibility to maintain "Common Elements" like pipes

for heating, water service, and sewage (id at *15).

The principal question raised by the parties is who caused the damage to

plaintiffs Condo. Defendants argue it was plaintiffs own fault because he left the

heat off during February 2015 which caused the PTAC device's pipes to freeze and

burst. Plaintiff responds that defendants have failed to provide evidence proving

that plaintiff did not heat the Condo or that the PTAC's failure was not caused by

other reasonable alternatives.

Plaintiff is correct; defendants have failed to meet their burden to prove

plaintiff caused the PTAC device's failure. As an initial matter, defendants do not

submit any evidence whatsoever that plaintiff did not heat his Condo in February

2015. For instance, in defendants' Statement of Undisputed Facts, defendants cite

to plaintiffs deposition to show that plaintiff did not leave his heat on and thus

caused the PTAC to burst (NYSCEF # 94 ,r 2, citing NYSCEF # 89 at 235:9 ·

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236:13). But plaintiff says no such thing in the cited excerpt. Instead, plaintiff is

asked whether there were "issues with [his] PTAC unit where the unit was freezing

over" in February of 2015, and plaintiff responded that he could not "say it was

freezing over, but there was an issue with a unit" (NYSCEF # 89 at 235:9-21).

Similarly, defendants argue in their brief that "plaintiff failed to maintain any heat

in his apartment" which "[n]aturally'' caused the PTAC pipes to burst (NYSCEF #

95 ,r 15). Yet defendants do not cite anythingin support of this assertion. The next

closest citation is to Scott's deposition, but at best he merely says that there were no

issues with PTACs in other apartments (id; see also NYSCEF # 90 at 77:10·16 [only

PTAC in the Condo had flooding issue]). Scott does not specifically attribute the

lack of problems in other apartments to adequate heating (see NYSCEF # 90 at

77=10·16). Thus, defendants have failed to provide any evidence that plaintiff failed

to heat his apartment, much less that the PTAC froze and burst.

Defendants also failed to submit evidence establishing that the PTAC's

failure was not caused by other reasonable alternatives. For instance, plaintiff

submits a 2011 report by Dynamic Structures that found that the "motorized

valves" installed with the PTAC devices throughout the building "must be replaced

as they could cause major water damage if the pipes get below a certain

temperature during the winter months" (NYSCEF # 104, Dynamic Structures

Report, at 11 · 12). Further interpretation of the evidence requires some technical

expertise to help explain whether these valves are Common Elements or not.

Consequently, given that the PTAC failure is a matter necessitating technical

expertise and investigation, and considering that neither party has furnished an

expert report showing the primary cause of this failure, it appears premature at

this juncture to definitively determine what caused the PTAC to malfunction and

assign liability accordingly.

11 Constructive Eviction and Return of Common Charges

Plaintiff claims that defendant's failure to make necessary repairs to the

common elements led to his condo becoming uninhabitable, thus constructively

evicting him. He also requests a return of all common charges for the same reasons.

"To be·an eviction, constructive or actual, there must be a wrongful act by the

landlord which deprives the tenant of the beneficial enjoyment or actual possession

of the demised premises" (Barash vPennsylvania Term. Real Estate Corp., 26 NY2d

77, 82 [1970]). It is well established that "[clondominium·unit owners are not

protected by the warranty of habitability, since they do not hold a lease for the

premises but possess a fee-ownership interest in the subject premises" (Katz v

Board ofMgrs., One Union Sq. E. Condominium, N. Y., N. Y., 25 Misc 3d 1238[A]

[Sup Ct, NY County 2009]). Also, the warranty of habitability only applies to a

tenant living in the apartment (see 20 Broad St. Owner LLC v Bonder USA, Inc.,

208 NYS3d 612,613 [1st Dept 2024D. Additionally, the First Department has held

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that even if a landlord-tenant relationship could be found between a condo board

and a condo owner, an owner cannot avail himself of the protection of the statutory

warranty of habitability if he does not reside in the unit (see Frisch v Bellmarc

Mgt., Inc., 190 AD2d 383, 390 [1st Dept 1993]).

In this case, plaintiff is the owner of the Condo, not a tenant. Consequently,

the parties do not maintain a landlord ·tenant relationship. In addition, plaintiff

never physically moved into his apartment. Therefore, plaintiff cannot avail himself

of protection under the warranty of habitability and he cannot be constructively

evicted since he never resided in the apartment. The court should grant summary

judgment on this claim.

Moreover, plaintiff is not entitled to a return of common charges, because "an

individual unit owner ... cannot withhold payment of common charges and

assessments in derogation of the by-laws of the condominium based on defective

conditions in his unit or in the common areas" (id at 38).-

III Negligence

For a negligence claim to stand separately from a breach of contract claim,

there must be an independent legal duty that is not solely derived from the

contractual obligations. "It is a well-established principle that a simple breach of

contract is not to be considered a tort unless a legal duty independent of the

contract itself has been violated" (Dormitory Auth. of the State ofNY v Samson

Constr. Co., 30 NY3d 704, 711 [2018]).

In his cause of action for negligence, plaintiff alleged that defendants failed to

properly maintain and/or repair the common elements of the condominium. This

allegation is "merely a restatement, albeit in slightly different language, of the

'implied' contractual obligations asserted in the cause of action for breach of

contract" (Clark-Fitzpatrick, Inc. v Long Is. R. Co., 70 NY2d 382, 390 [1987]).

Here, plaintiff failed to specify any duty breached by defendants that is

independent of the alleged contractual obligations. Merely charging a breach of a

"duty of due care", employing language familiar to tort law, does not, without more,

transform a simple breach of contract into a tort claim (idt

In the absence of an assertion of an independent duty by plaintiff, the

negligence claim is duplicative of the breach of contract claim. Therefore, the court

must dismiss the plaintiffs negligence claim.

Conclusion

In consideration of the above, it is hereby

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Motion No. 003

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ORDERED that defendants' Motion for Summary Judgment (MS 003) is

granted in part as to the constructive eviction and negligence claims, and denied in

part as to the breach of contract claim; and it is further

ORDERED that the parties are to report to Part 40, the trial part, and it is

further

ORDERED that counsel for defendants is to serve all parties this order, with

notice of entry, within ten days of this order.

10/15/2024

DATE

CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED □ DENIED GRANTED IN PART □ OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN . FIDUCIARY APPOINTMENT □ REFERENCE

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Motion No. 003

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