# Alford v. 72nd Tenants Corp.

> New York Supreme Court, New York County · March 12, 2024 · 2024 NY Slip Op 30822(U)

URL: https://www.frixlaw.com/law-library/cases/9952491

## Case

- **Court:** New York Supreme Court, New York County
- **Decided:** March 12, 2024
- **Citations:** 2024 NY Slip Op 30822(U)
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9952491

## Opinion text

Alford v 72nd Tenants Corp.
2024 NY Slip Op 30822(U)
March 12, 2024
Supreme Court, New York County
Docket Number: Index No. 653335/2018
Judge: Debra A. James
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.
INDEX NO. 653335/2018
NYSCEF DOC. NO. 233 RECEIVED NYSCEF: 03/12/2024

SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. DEBRA A. JAMES PART 59
Justice
----------------------------------------------------------------- ----------------X
INDEX NO. 653335/2018
REBECCA ALFORD,
MOTION DATE 06/08/2023
Plaintiff,
MOTION SEQ. NO. 002
- V -

72ND TENANTS CORPORATION, BROWN HARRIS
STEVENS RESIDENTIAL MANAGEMENT, LLC, and
DECISION + ORDER ON
BOARD OF DIRECTORS OF 72ND TENANTS
CORPORATION, MOTION

Defendants.
------------------------------------------------------------------- --------------X

The following e-filed documents, listed by NYSCEF document number (Motion 002) 87, 88, 89, 90, 91,
92, 93, 94, 95, 96, 97, 98, 99,100,101,102,103,104,105,106,107,108,109,110,111,112,113,114,
115,116,117,118,119,120,121,122,123,124,125,126,127,128,129,130,131,132,133,134,135,
136,137,138,139,140,141,142,143,144,145,146,147,148,149,150,151,152,153,154,155, 156,
157,158,159,160,161,162,163,164,165,166,167,168,169,170,171,172,173,174,175,176,177,
178,179,180,181,182,183,184,185,186,187,188,189,190,191,192,193,194,195,196,197,198,
199,200,201,202,203,204,205,206,207,208,209,210,211,212,213,214,215,216,217,218,219,
220,221,222,223,224,225,226,227,228,229,230
were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER

ORDER

ORDERED that the motion of defendants for summary judgment is

granted, and the complaint is dismissed in its entirety, with costs

and disbursements to defendants as taxed by the Clerk upon the

submission of an appropriate bill of costs; and it is further

ORDERED that the Clerk is directed to enter judgment accord-

ingly.

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DECISION

Plaintiff Rebecca Alford ("Plaintiff"), a tenant shareholder,

brings this action against the 72 nd Tenant Corporation ("the Co-

op"), Brown Harris Stevens Residential Management ("Brown Harris")

and the Board of Directors of 72 nd Tenant Corporation ("the Board") .

She alleges that the roof area adjacent to her apartment ("2 nd

Floor Roof Area") is a terrace and is part of the leased premises

under her proprietary lease agreement. Plaintiff asserts multiple

claims, including breach of contract against the Co-op for

allegedly failing to maintain the building and the 2 nd Floor Roof

Area in good repair.

The Co-op and the Board (together, "Defendants") move for

summary judgment pursuant to CPLR § 3212. Plaintiff opposes the

motion.

Defendants' motion is granted for the reasons stated below.

BACKGROUND FACTS AND PROCEDURAL HISTORY

The Co-op

The Co-op is a residential cooperative corporation that owns

the apartment building located at 125 East 72 nd Street in Manhattan

("the Building"), and Brown Harris is the managing agent for the

Building (NYSCEF Doc No. 92, Mazzola affirmation, exhibit D,

Proprietary Lease, p. 3; NYSCEF Doc No. 231, Mazzola affirmation,

exhibit G, Derlaga deposition transcript at p. 9:4-14). The Co-op

is governed by its by-laws, and its Board has, in pertinent part,

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discretionary power to "prescribe the manner of maintaining and

operating the apartment building of the corporation, and any other

premises acquired by the corporation by purchase or otherwise"

(NYSCEF Doc No. 92, Mazzola affirmation, exhibit D, Proprietary

Lease, p. 4-5 and NYSCEF Doc. No. 91, By-Laws, p. 7). The Board

may also change the house rules applicable to the Building whenever

it deems necessary, which are binding on all tenants of the

Building (NYSCEF Doc. No. 91, id., pp. 7-8).

The Co-op leases its apartments to tenant shareholders who

have the exclusive right to possess their apartments (NYSCEF Doc.

No. 91, p. 14). The Co-op uses a form of proprietary lease adopted

by the Board (id., p. 14). All proprietary leases are executed in

the same form, except for the statement related to the number of

shares of stock owned by each shareholder (id.)

Apartment 2B

On November 3, 1993, Plaintiff and her late husband purchased

535 shares from the Co-op for apartment 2B ( "the Apartment")

(NYSCEF Doc. No. 92, Proprietary Lease; NYSCEF Doc. No. 154,

Assignment; NYSCEF Doc. No. 150, affidavit of Plaintiff, <JI 6).

Adjacent to the Apartment is the 2 nd Floor Roof Area, the subject

of the dispute in this action, which Floor Roof Area is located

above a commercial space on the first floor of the Building.

(NYSCEF Doc. No. 231 [replacing illegible NYSCEF Doc. No. 95],

deposition transcript of Brown Harris property manager John

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Derlaga, at p. 89:14-20). Defendants contend that none of the 535

shares allocated to apartment 2B, (which apartment has the lowest

square footage and the least amount of shares allocated to any of

the Bline apartments), account for the 2 nd Floor Roof Area (NYSCEF

Doc. No. 88, Mazzola affirmation, ~ 9; NYSCEF Doc. No. 97, Plan of

Cooperative Organization, at p. 31)

The 2 nd Floor Roof Area consists of a large flat square with

a long section leading to a fire escape in case of an emergency

(NYSCEF Doc. No. 150, affidavit of Plaintiff at~ 7). There are

two access points to the 2 nd Floor Roof Area: one from Plaintiff's

dining room and the other through the egress that is part of the

fire escape (NYSCEF Doc. No. 231, id., p. 35:4-11). Although other

shareholders can access the 2 nd Floor Roof Area through the egress

in instances of emergency, Plaintiff, otherwise, has exclusive

access to the space (NYSCEF Doc. No. 150, at~~ 7, 22, 27; NYSCEF

Doc No . 2 31 , at p . 3 9 : 7 - 9, p . 4 0 : 2 3 - 2 5, p . 4 1 : 2 ) .

Plaintiff attests that the 2 nd Floor Roof Area, which she

refers to as "her terrace," was the main inducing factor for her

and her late husband's purchase of the Apartment, and that she has

used the terrace since 1993 (NYSCEF Doc. No. 96, Mazzola

affirmation; NYSCEF Doc. No. 96, Plaintiff's tr at p. 28:8-25 and

p. 29:2-9; NYSCEF Doc. No. 150, id.). On the square portion of

the 2 nd Floor Roof Area, she has hosted parties, installed light

fixtures, and kept plants and outdoor furniture (NYSCEF Doc. No.

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150, id., at~ 34). The Co-op also replaced a spigot she used to

water her plants (id., ~ 31).

Plaintiff contends that the Co-op has always acknowledged her

right to use the 2 nd Floor Roof Area as a terrace and has

continuously referred to the space as a "terrace" (id., ~~ 36-42).

Plaintiff also attests that the 2 nd Floor Roof Area was historically

used as a terrace by previous shareholders as well, as evidenced

by the built-in flower beds and the glass mirrors hung alongside

the lattice fences at the time of her purchase in 1993 (id., ~~

23-25) .

The Proprietary Lease

Plaintiff and her deceased husband are the assignees of the

proprietary lease for the Apartment (NYSCEF Doc No. 154, Closing

Statement; NYSCEF Doc. No. 150, affidavit of plaintiff, ~ 6).

The proprietary lease agreement states in pertinent part that

the lessee,

"upon paying the rent and performing the covenants and
complying with the conditions on the part of the Lessee to be
performed and complied with, as herein set forth, shall, at
all times during the terms hereby granted, quietly have, hold
and enjoy the apartment without any let, suit, trouble or
hinderance from the Lessor"

(NYSCEF Doc. No. 92, p. 9, Lease, Article I, ~ 8). A "lessee of

an apartment embracing a penthouse, balcony or terrace or a portion

thereof shall have and enjoy the exclusive use of the balcony or

terrace appurtenant to such apartment subject to all the applicable

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provisions of this lease and to the use of such balcony or terrace

by the Lessor to enable it to fulfill its obligations hereunder"

(id., Lease, Article I, ~ 7). If the apartment includes a balcony

or terrace, the lessee is "obligated to keep such terrace or

balcony clean and free from ice or snow, and to provide and

maintain proper drainage therefor," and "shall be responsible for

the maintenance and repair thereof" (id., p. 15, Article II, Lease

As to repairs, the proprietary lease states in pertinent part:

"The Lessor shall keep in good repair the foundations,
sidewalks, gardens, walls, (except ceilings, floors, interior
walls of apartments), supports, beams, roofsr terraces,
gutters, fences, cellars, chimneys, laundry and storage
space, entrances and street and court doorways, public halls,
public stairways, windows, fire escapes, elevators, pumps and
tanks, and all pipes and electrical conduits, together with
all plumbing, heating, and other apparatus intended for the
general service of the building, except those portions of any
foregoing which it is the duty of the Lessee to maintain and
keep in good repair as provided in paragraph Seventh of
Article II hereof . [t]he covenants by the Lessor herein
contained are subject, however, to the discretionary power of
the Board of Directors of the Lessor to prescribe from time
to time the manner of maintaining and operating the building
and what services and attendants are proper, and subject to
the further proviso that there shall be no diminution or
abatement of rent or maintenance charge or other compensation
for the failure by the Lessor to perform any service or
obligation or for interruption or curtailment of service,
when such failure, interruption or curtailment shall be due
to accident or to alterations or repairs desirable or
necessary to be made, or to inability or difficulty in
securing supplies or labor, to some other cause not negligence
on the part of the Lessor . "

(id., p. 6, Lease, Article I, Lease~ 1 and 2. The lease

further provides, in pertinent part that:

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"No diminution or abatement of rent, or other compensation,
shall be claimed or allowed for inconvenience or discomfort
arising from the making of repairs or improvements to the
building or its equipment and appliances, (except in the case
of damage so extensive as to render the apartment untenantable
as provided in Article I, paragraph Third) or from any action
taken to comply with the law, ordinance or order of a
governmental authority.

( id . , p . 2 0 , Le as e , Article I I , <JI 16) .

Construction Performed on the 2 nd Floor Roof Area

The evidence in the record shows that the repair work on the

2 nd Floor Roof Area commenced in 2018 and was completed in 2020.

In January 2018, the Co-op's professional engineer, Gilsanz

Murray Steficek LLP ("GMS"), inspected the commercial space below

the Apartment and discovered significant cracks and damage to the

concrete slab supporting the 2 nd Floor Roof Area (NYSCEF Doc No.

101, Mazzola affirmation, exhibit M) The Co-op subsequently

retained GMS to oversee the construction of the commercial space

and the slab repair of the 2 nd Floor Roof Area (NYSCEF Doc. No.

105, Mazzola affirmation, exhibit Q).

To carry out the construction work per the GMS drawings and

oversight, the Co-op hired a contractor, Pali Building

Restoration, Inc. ("Pali") (NYSCEF Doc. Nos. 102 and 103, Mazzola

affirmation, exhibits N and O). Rick Kramer Architects ("RKA") was

tasked to oversee, among other things, the roof and parapet repair

work on the 2 nd Floor Roof Area, (NYSCEF Doc No. 106, Mazzola

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affirmation, exhibits R) . RKA' s role in the project was later

expanded by the Co-op to include the Building's facade.

Before the repair project began, the Co-op applied for a

construction permit with the New York City Department of Buildings

("DOB") (NYSCEF Doc. Nos. 110-111, Mazzola affirmation, exhibits

V and W), which was not issued for approximately four months

(NYSCEF Doc. No. 114, Mazzola affirmation, exhibit Z). Once issued

by DOB, the construction permit was subject to Pali updating its

proof of insurance (id.).

The Co-op also filed an application for approval of the

planned alterations with the New York City Landmarks Preservation

Commission ("LPC") because the Building is landmarked (NYSCEF Doc.

No. 113, Mazzola affirmation, exhibit Y).

Once the construction work on the 2 nd Floor Roof Area began

on July 25, 2018, the Co-op faced many delays. At the inception

of the project, John Derlaga, the Building's manager, reached out

to Pali and expressed his frustration that there were not enough

workers on site (NYSCEF Doc. Nos. 122-124, Mazzola affirmation,

exhibits HH, II and J J) Additionally, GMS determined, through

multiple probes, that the damage was much more serious than

initially anticipated.

When GMS inspected the slab repair work that was performed in

September, October and December of 2018, it concluded that Pali's

work did not conform to drawing specifications, its welder was not

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licensed and the welds were of poor quality (NYSCEF Doc. Nos. 125-

127 & 131, Mazzola affirmation, exhibits KK, MM QQ). In December

2018, RKA also submitted an amendment to the ongoing repair project

in the Building and explicitly stated that all work was to be

performed only when the exterior temperature was at 45 degrees

(NYSCEF Doc. No. 129, Mazzola affirmation, exhibit 00)

In February 2019, the Co-op expanded the repair work to

include the Building's roof. Specifically, Derlaga informed all

shareholders by letter that the construction work in the Building

would expand to include the replacement of the parapets and the

floor of the 2 nd Floor Roof Area, repairs to the commercial space,

and repairs to the Building's roof, with all work due to be

completed by the end of the summer (NYSCEF Doc. No. 132, Mazzola

affirmation, exhibit RR). During that time, Pali was going out of

business and wrapping up its operations causing the Co-op to retain

Pofi Construction Corporation ("Pofi") as the new contractor for

the repair work (NYSCEF Doc. No. 231 at pp. 201, 207)

The 2 nd Floor Roof Area repairs were completed by February

2020, excluding the installation of the pavers because Plaintiff

alleged that the existing pavers contained lead (NYSCEF Doc Nos.

136-137, Mazzola affirmation, exhibits VV and WW, Seth Roye tr pp

133-134). However, the construction project was temporarily shut

down in mid-March of 2020 due to the COVID-19 pandemic (NYSCEF

Doc. No. 138, Mazzola affirmation, exhibit XX).

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When work resumed in July 2020, Pofi installed the pavers on

the 2 nd Floor Roof Area after testing confirmed that they did not

contain lead (NYSCEF Doc Nos. 139-140, Mazzola affirmation,

exhibits YY and ZZ) . By September 2 02 0, the 2 nd Floor Roof Area

repair project was completed except for punch list items (NYSCEF

Doc No. 141, Mazzola affirmation, exhibit AAA).

During the time that the construction project was taking place

on the 2 nd Floor Roof Area, the Co-op informed Plaintiff of the

damage identified by GMS and directed her to cease using the space

(NYSCEF Doc. Nos. 102-103, Mazzola affirmation, exhibits N and O).

At one point when the repairs were being made, the conditions from

the construction caused water accumulation on the 2 nd Floor Roof

Area, which the Co-op ordered Pali to address the very next day

(NYSCEF Doc Nos. 120 and 142 respectively, Mazzola affirmation,

exhibits FF and BBB).

Procedural Posture of the Case

Plaintiff commenced this case against the Co-op and Brown

Harris only on July 30, 2018 (NYSCEF Doc. No. 93, Mazzola

affirmation, exhibit E, Complaint) . The Co-op and Brown Harris

moved to dismiss the complaint on August 20, 2018 (NYSCEF Doc. No.

94, Mazzola affirmation, exhibit F) . On December 11, 2018, the

court dismissed the fourth cause of action for breach of fiduciary

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duty against the Board 1 and the fifth cause of action for negligence

against Brown Harris and the Co-op (NYSCEF Doc No. 213, Simoni

affirmation, exhibit I) The court also dismissed the complaint

against Brown Harris in its entirety (id.).

On April 15, 2019, the parties filed a stipulation to allow

Plaintiff to file a supplemental summons and amended complaint,

adding the Board as a party (NYSCEF Doc No. 58). On April 16, 2019,

Plaintiff served a supplemental summons and amended complaint,

asserting almost the same exact causes of action as in her original

complaint (NYSCEF Doc No. 89, Mazzola affirmation, exhibit A,

amended complaint). However, Plaintiff added a cause of action for

breach of the warranty of habitability against the Board as her

fourth cause of action and a breach of fiduciary duty against the

Co-op as her fifth cause of action (id.) On May 16, 2019,

Defendants answered the amended complaint (NYSCEF Doc No. 90,

Mazzola affirmation, exhibit B). Defendants now move for summary

judgment. Plaintiff opposes.

Both parties have submitted affidavits from experts on the

issue of whether the duration of the Co-op's repair project on the

2 nd Floor Roof Area was reasonable. In support of their motion for

summary judgment, Defendants submitted an affidavit from Benjamin

1
Al though the Board was not named as a party in the initial
complaint, Plaintiff asserted a cause of action against the Board
in the body of the complaint.
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M. Cornelius (Cornelius), who is licensed as a professional

engineer, civil engineer, and structural engineer (NYSCEF Doc No.

145, Cornelius affidavit). Mr. Cornelius avers that although the

repairs on the 2 nd Floor Roof Area took 33 months to complete, the

time was reasonable: the project arose out of unforeseen

conditions, the extent of the damage came to light as the project

progressed, a contractor needed to be selected for the work, and

the Co-op had to secure the necessary permits from both the DOB

and LPC. Additionally, the Building expanded the repair project at

a time when the construction industry in New York City was busy

(id., p. 5) Plaintiff submitted a rebuttal affidavit from Douglas

R. Korves (Korves) , who is a registered architect licensed to

practice in New York. Mr. Korves attests that the time to complete

the 2 nd Floor Roof Area repair project was unreasonable (NYSCEF

Doc. No. 179, Korves affidavit, pp. 9-10). Per Mr. Korves, the Co-

op should have performed an emergency repair of the under slab and

the 2 nd Floor Roof Area, and not couple this repair project with

other work in the Building because it resulted in an unreasonable

delay (id.)

DISCUSSION

A party moving for summary judgment under CPLR § 3212 "must

make a prima facie showing of entitlement to judgment as a matter

of law, tendering sufficient evidence to demonstrate the absence

of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d

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320, 324 [1986]) The "facts must be viewed in the light most

favorable to the non-moving party" (Vega v Restani Constr. Corp.,

18 NY3d 499, 503 [2012] [internal quotation marks and citation

omitted]). Once the moving party has met this prima facie burden,

the burden shifts to the non-moving party to furnish evidence in

admissible form sufficient to raise a material issue of fact

(Alvarez, 68 NY2d at 324). The moving party's "[f]ailure to make

such prima facie showing requires a denial of the motion,

regardless of the sufficiency of the opposing papers" (id.)

A. Standing

As a preliminary matter, Defendants argue, for the first time,

that Plaintiff lacks standing to bring this lawsuit because the

2 nd Floor Roof Area is not part of the demised premises. Pursuant

to CPLR § 3211 (e), the failure to raise the defense of standing

in an answer or in a pre-answer motion to dismiss constitutes a

waiver of the defense (Eida v Bd. of Mgrs. of 135 Condominium, 166

AD3d 561, 561 [1st Dept 2018]; Dougherty v City of Rye, 63 NY2d

989, 991 [1984]). Nonetheless, "a waiver may be retracted 'by

assertion of the defense in connection with the summary

judgment .... an unpleaded defense may not only be invoked to defeat

a motion for summary judgment, but in the absence of surprise or

prejudice to, or objection by, the opposing party, it may also

serve as the basis for an affirmative grant of such relief'"

(Nikita Banks v Peace of Mind Realty, 2019 NY Slip Op 32689[U],*

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*13-14 [Sup Ct, NY County 2019] [citations omitted]; see also

Sullivan v American Airlines, Inc., 80 AD3d 600, 602 [2d Dept 2011]

["an unpleaded defense may serve as the basis for granting summary

judgment in the absence of surprise or prejudice to the opposing

party"]; BMX Worldwide v Coppola N.Y.C., Inc., 287 AD2d 383, 384

[1st Dept 2001]). "[P]rejudice or surprise is ameliorated however,

when it is shown that the plaintiff has had a full and fair

opportunity to respond and oppose the defense being asserted in

connection with summary judgment" (Antwi v HVT, Inc., 24 Misc 3d

1250 [A], 2009 NY Slip Op 51937 [U], *11 [Sup Ct, Bronx 2009]

[citations omitted]).

Here, Defendants failed to raise the defense of standing in

their answer and their motion to dismiss, therefore waiving it

(see NYSCEF Doc. No. 90, answer to amended complaint; NYSCEF Doc.

No. 210, Simoni affirmation in opposition to instant motion,

exhibit F) . Defendants thus waived the affirmative defense of

standing but retracted their waiver by asserting it for the first

time in their motion for summary judgment. As Plaintiff fully

opposed the issue, both parties having an opportunity to address

such defense in their papers, the court finds that Plaintiff is

not prejudiced by the court's consideration of the issue. In any

event, Defendants' affirmative defense of standing fails because

defendants have not prima facie established that the 2 nd Floor Roof

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Area is not part of Plaintiff's demised premises, as discussed

infra.

Turning to the issue on whether the 2 nd Floor Roof Area is a

part of the demised premises, "[a] lease agreement, like any other

contract, essentially involves a bargained-for exchange between

the parties" (Rowe v Great Atl. & Pac. Tea Co. r 4 6 NY2d 62, 67

[ 1978 J) "It is the proprietary lease which creates a landlord-

tenant relationship between the shareholder and the cooperative

corporation" (Blumenfeld v Stable 49, Ltd., 62 Misc 3d 1208 [A],

2018 NY Slip Op 51958[U], *23-24 [Sup Ct, NY County 2018]

[citations omitted]) . "The relationship between the

shareholder/lessees of a cooperative corporation and the

corporation is determined by the certificate of incorporation, the

corporation's bylaws and the proprietary lease" ( Fe Bland v Two

Trees Mgt. Co., 66 NY2d 556, 563 [1985]). Thus, ordinary contract

principles apply in interpreting those documents (see Kralik v 239

E. 79th St. Owners Corp., 5 NY3d 54, 57 [2005]; see also George

Backer Mgt. Corp. v Acme Quilting Co., 46 NY2d 211, 217

[1978] [stating in pertinent part that "a lease is subject to the

rules of construction applicable to any other agreement"]). Courts

have previously held that the offering plan and the lease determine

the extent of tenant's rights to the roof ( see Fairmont Tenants

Corp. v Bratt, 162 AD3d 442 [1st Dept 2018]; 1050 Fifth Ave. v

May, 247 AD2d 243, 243-244 [1st Dept 1998])

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"In cases of contract interpretation, it is well settled that

'when parties set down their agreement in a clear, complete

document, their writing should . be enforced according to its

terms'" (South Rd. Assoc., LLC v International Bus. Machs. Corp.,

4 NY3d 272, 277 [2005] [citations omitted]). "'The best evidence

of what parties to a written agreement intend is what they say in

writing'" ( see Greenfield v Philles Records, 98 NY2d 5 62, 5 69

[2002] [citations omitted]). If the terms of a contract, however,

are "susceptible of two reasonable interpretations," then the

contract is deemed ambiguous (Ellington v EMI Music, Inc., 24 NY3d

239, 244 [2014] [internal quotation marks and citation omitted]).

Applying the law to the facts at bar, there is an issue of

fact as to whether the 2 nd Floor Roof Area is part of Plaintiff's

demised premises. The proprietary lease describes the Apartment

as "all that certain space on the second floor of the building,

known as Apartment 2-B, and herein referred as the apartment"

(NYSCEF Doc No. 92, p. 3) The proprietary lease, however, does

not describe what "all that certain space" encompasses or describe

the number of rooms or other areas that the Apartment contains.

The language is thus "sufficiently ambiguous to permit the

introduction of extrinsic evidence to discern the parties' intent

as to whether the [P]laintiff has the exclusive right to use" the

2 nd Floor Roof Area (Koretz v 363 E. 76th St. Corp., 178 AD3d 445,

446 [1st Dept 2019]).

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To give the "proprietary lease meaning," the court may review

the Co-op's offering plan submitted by Defendants (Fairmont

Tenants Corp, 162 AD3d at 442; see also 1050 Fifth Ave., 247 AD2d

at 243) There is no ambiguity in the Co-op' s offering plan

(NYSCEF Doc. No. 97, Plan of Cooperative Organization dated

September 8, 19 64) that there is no "terrace" or "balcony"

allocated to Plaintiff's Apartment. Specifically, Schedule C of

the offering plan shows only the penthouse has a terrace as denoted

by "Ter" next to its description (NYSCEF Doc No. 97, p. 34) .

According to the offering plan submitted, the 2 nd Floor Roof Area

is not allocated to the Apartment (see Fairmont Tenants Corp, 162

AD3d at 442).

Plaintiff, however, argues that there is no evidence that the

offering plan submitted by Defendants is valid or that it was filed

with the New York State Attorney General's Office as required by

13 NYCRR 17.4 (e).

In response, Defendants argue that the "ancient document

rule" applies, making the document self-authenticating. However,

looking at the document itself, it is not clear to the court, from

the first page or the content, that the copy of the offering plan

that was submitted was filed and approved by the Attorney General.

Mr. Mazzola's affirmation only identifies the exhibit as the "Co-

op' s Offering Plan" without providing any further description

(NYSCEF Doc No. 88, Mazzola affirmation, p. 14).

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Notwithstanding Defendants' argument, the court is unable to

apply the ancient document rule here. "Under the 'ancient

document' rule, a record or document which is found to be more

than 30 years old, and which is proven to have come from proper

custody and is itself free from any indication of fraud or

invalidity, 'proves itself'" (Tillman v Lincoln Warehouse Corp.,

72 AD2d 40, 44 [1st Dept 1979] [citations omitted]). "If the

genuineness of an ancient document is established, it may be

received to prove the truth of the facts that it recites" (id. at

45). However, the genuineness of the document has not been

established, as Defendants failed to submit an affidavit from

someone with personal knowledge to authenticate the Co-op's

offering plan as a business record or provide other proof of

custody (Dodge V Gallatin, 130 NY 117, 133-134 [1891];

Thistlethwaite v Thistlethwaite, 200 Misc 64, 66 [Sup Ct, Monroe

County 1950]). Accordingly, Defendants have failed to demonstrate

that the 2 nd Floor Roof Area is not part of the demised premises,

and therefore Defendants do not prevail on their lack of standing

defense.

B. Breach of Contract Against the Co-Op

In her first cause of action, Plaintiff alleges a breach of

contract against the Co-op. Plaintiff's main allegation is that

the Co-op breached its obligation toward her by performing

construction work on the 2 nd Floor Roof Area in a "harassingly slow

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manner," preventing her from using it for an unreasonably long

period of time (NYSCEF Doc. No. 89, Amended Complaint, at p. 4).

Defendants argue that Plaintiff cannot demonstrate a breach of the

terms of the proprietary lease even if the 2 nd Floor Roof Area were

part of the demised premises.

To prevail on a cause of action for breach of contract, a

plaintiff must prove: (1) the existence of a contract, (2)

plaintiff's performance thereunder, ( 3) the defendant's breach,

and ( 4) resulting damages (Harris v Seward Park Hous. Corp., 79

AD3d 425, 426 [1st Dept 2010]).

There is no dispute that a proprietary lease agreement for

the Apartment exists between Plaintiff and the Co-op. In her

Amended Complaint, Plaintiff identifies numerous provisions in the

proprietary lease to show the Co-op's obligations to make repairs

for which she alleges there was a breach. Under the provisions

(lease, Article I, section 1) , as cited by Plaintiff, the Co-op

"shall keep in good repair" "terraces," "public halls," and "fire

escapes" The Co-op must, under section two of Article I, 2 also

"maintain and manage the building as first-class apartment

building and shall keep the elevators and the public halls .

. clean." Under Article II, section 12, of the lease, the Co-op is

2
Although Plaintiff cites the second section of "Article II" in
her Amended Complaint, this quoted provision is in fact located
under Article I.
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also to "restore the apartment to its proper and usual condition",

after making repairs.

Plaintiff alleges that she meets the second element of breach

of contract because she has paid the Co-op for the 535 shares

allocated to the Apartment and has performed all her obligations

under the proprietary lease. She argues that she has established

the third element of the cause of action as well because the Co-

op breached the provisions of the proprietary lease that she

identified, in undertaking repairs on the 2 nd Floor Roof Area in a

"harassingly slow matter," precluding her from using the area for

an unreasonably long time.

Plaintiff's breach of contract claim fails even assuming that

the 2 nd Floor Roof Area were part of Plaintiff's demised premises.

First, the provisions cited by Plaintiff in her Amended Complaint

essentially state that the Co-op is responsible for, among other

things, maintaining terraces in good repair. The evidence in the

record show that the Co-op met that obligation by undertaking

repairs that were required under the agreement; made repairs on

the 2 nd Floor Roof Area/"terrace" after it discovered that there

were significant cracks and damage to the 2 nd Floor Roof Area and

the commercial space below; and thoroughly investigated and

executed the repairs in consultation with the licensed engineers

and architects.

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Plaintiff admits that the Co-op made repairs as obligated by

the proprietary lease once the damage on the 2 nd Floor Roof Area

was discovered. Nonetheless, Plaintiff challenges the time in

which the repairs were made and argues that the Co-op violated the

proprietary lease by "not timely engaging in the repairs and then

elongating the repair process and not returning the pavers to the

Terrace until October 13, 2020 . "and by failing to "promptly

restore as mandated by the Lease." However, in support of this

argument, Plaintiff fails to cite to any provisions under the

proprietary lease that required the Co-op to carry out the repairs

within a specific time. Not one of the provisions cited by

Plaintiff in her Amended Complaint set a "reasonable" time in which

repairs must be completed. In fact, the proprietary lease does

not set any such standards. Plaintiff's cause of action for breach

of contract merely amounts to a disagreement about the amount of

time in which the Co-op made the repairs, not a breach of contract.

Although the parties have submitted evidence from experts who

disagree on whether the construction project on the 2 nd Floor Roof

Area took an unreasonably long time, this evidence is irrelevant

as terms of the proprietary lease contains no provisions concerning

the reasonableness of the time for repairs. In fact, under the

lease, Plaintiff's right to use the "terrace" would be subject to

the Co-op's repair and maintenance responsibilities. Moreover, the

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lease terms explicitly absolve the Co-op from any liability for

the inconvenience or discomfort arising from the repairs.

Finally, Plaintiff alleges that the Co-op breached the

proprietary lease because it violated the New York City Housing

Maintenance Code (HMC), including HMC § 27-2009.2, by failing to

maintain the Building and failing to post the Safe Construction

Bill of Rights. This argument does not prevail because Plaintiff

lacks standing to enforce such violations under the Housing

Maintenance Code. Under controlling case law, when the DOB issues

notices of violations "against the Co-op, plaintiff [] [is] under

no obligation to respond to them," and a private litigant,

"lack[s] standing to enforce the DOB's order to correct the

violation" (Wachtel v Park Ave & 84th St., Inc., 180 AD3d 545, 546

[1st Dept 2020] [citations omitted]). Additionally, the HMC § 27-

2009.2 (g) explicitly states that the provisions of the section

are to be "enforced by the department or department of buildings."

Consequently, only the New York City Department of Housing

Preservation and the Department of Buildings can enforce the Co-

op's violations of the Housing Maintenance Code (see also Delgado

v New York City Hous. Auth., 66 AD3d 607, 608 [1st Dept 2009]

["Only the Commissioner of the New York City Department of Housing

Preservation and Development is authorized to seek such relief or

other sanctions and remedies for violations of the Housing

Maintenance Code (NY City Charter§ 1802 [1]"]).

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C. The Covenant of Quiet Enjoyment against the Co-op

In her second cause of action, Plaintiff alleges a breach of

the covenant of quiet enjoyment against the Co-op (NYSCEF Doc. No.

89, Amended Complaint, at p. 5). She alleges that the Co-op

unreasonably performed repair work on the 2 nd Floor Roof Area

precluding her from its use and ousting her from her own "terrace"

(id.). Defendants argue that there was no ouster because the

repairs were made with Plaintiff's consent (NYSCEF Doc No. 147,

Defendants' Memorandum of Law, p. 14).

"To make out a prima facie case of breach of the covenant of

quiet enjoyment, a tenant must establish that the landlord's

conduct substantially and materially deprived the tenant of the

beneficial use and enjoyment of the premises" (Jackson v

Westminster House Owners Inc., 24 AD3d 249, 250 [1st Dept 2005]).

"There must be an actual ouster, either total or partial, or if

the eviction is constructive, there must have been an abandonment

of the premises by the tenant" (id.).

Assuming the 2 nd Floor Roof Area is a part of the demised

premises, the Co-op's repairs of the space do not amount to an

eviction. First, there was no constructive eviction because there

is no evidence that Plaintiff abandoned the demised premises.

However, Plaintiff argues that she was ousted from the 2 nd Floor

Roof Area due to the repairs made by the Co-op. "[A]lterations to

the leased premises, made with the consent of the tenant, do not

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amount to an eviction, no matter how extensive or the degree of

interference with the tenant's occupancy" (Jackson, id.) The Co-

op' s entry to the 2 nd Floor Roof Area was made pursuant to the

right the Co-op reserved in the proprietary lease, which was signed

and consented by Plaintiff. For these reasons, Plaintiff's second

cause of action is dismissed.

D. The Breach of Warranty of Habitability Against the Co-op
and the Board of Directors

For her third and fourth causes of action of breach of the

warranty of habitability against the Co-op and the Board,

respectively, Plaintiff alleges that Defendants failed to maintain

the Co-op in good repair as required by Real Property Law§ 235-

b. She alleges that Defendants failed to timely cure the

conditions and thus prevented her from using the 2 nd Floor Roof

Area, as well as compromised the fire egress through the 2 nd Floor

Roof Area for a long period of time (NYSCEF Doc No. 89 at pp. 3,

6-7). Defendants argue that the loss of an amenity like a terrace

is not a breach of warranty.

Section 235-b of the Real Property Law, provides in pertinent

part:

"In every written or oral lease or rental agreement for
residential premises the landlord or lessor shall be deemed
to covenant and warrant that the premises so leased or rented
and all areas used in connection therewith in common with
other tenants or residents are fit for human habitation and
for the uses reasonably intended by the parties and that the
occupants of such premises shall not be subjected to any
conditions which would be dangerous, hazardous or detrimental

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to their life, health or safety. When any such condition has
been caused by the misconduct of the tenant or lessee or
persons under his direction or control, it shall not
constitute a breach of such covenants and warranties."

Further, Real Property Law§ 235-b applies to proprietary leases

(see Matter of 12-14 E. 64th Owners Corp. v Hixon, 130 AD3d 425,

425 [1st Dept 2015]). Additionally, under the Multiple Dwelling

Law, and HMC § 27-005, the Co-op is required to maintain the

premises in good repair.

Nonetheless, "[t]he landlord is no absolute insurer of

services which do not affect habitability nor is it a guarantor of

'every amenity customarily rendered in the landlord-tenant

relationship'" (Suarez v Rivercross Tenants' Corp., 107 Misc 2d

135, 139 [App Term, 1st Dept 1981], quoting Park W. Mgt. Corp. v

Mitchell, 47 NY2d 316, 327 [1979]). "[T]he implied warranty

protects only against conditions that materially affect the health

and safety of tenants or deficiencies that 'in the eyes of a

reasonable person ... deprive the tenant of those essential functions

which a residence is expected to provide'" (Solow v Wellner, 86

NY2d 582, 588 [1995] [citation omitted]).

As a preliminary matter, Plaintiff's breach of warranty of

habitability claim against the Board fails because "section 235-b

only applies to the parties to the lease" (Adler v Ogden CAP

Props., LLC, 42 Misc 3d 613, 622 [Sup Ct, NY County 2013], affd

126 AD3d 544 [1st Dept 2015]) Since the Board is not a party to

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the proprietary lease, the fourth cause of action is dismissed

against such defendant.

Assuming the 2 nd Floor Roof Area were part of the leased

premises, the Co-op did not breach the implied warranty of

habitability. While the Co-op is responsible for maintaining the

Building in good repair, there are no allegations by Plaintiff

that the Apartment was uninhabitable or that it did not serve the

essential function that it was expected to serve. Instead,

Plaintiff's claim involves the uninhabitable condition of the 2 nd

Floor Roof Area while it was under repair. "[A] terrace that is

safe and suitable for plaintiff's own exclusive, outdoor use is an

amenity, not an essential function that the co-op must provide"

(Musey v 425 E. 86 Apts. Corp., 154 AD3d 401, 405 [1st Dept 2017]).

Thus, even if the 2 nd Floor Roof Area were part of the demised

premises as a terrace, it would constitute an amenity and it would

not be an essential function of the Apartment that the Co-op must

provide.

There is also no evidence that the conditions caused by the

repairs were dangerous, hazardous or detrimental to Plaintiff's

life, heal th or safety. The evidence preponderates that the

conditions on the 2 nd Floor Roof Area for which Plaintiff is suing

were a direct result of necessary repairs undertaken by the Co-op

to fulfill its obligations pursuant to the proprietary lease and

to eliminate any hazardous conditions that the damage imposed.

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These conditions thus "d[o] not fall within the purview of a breach

of the warranty of habitability, especially where said renovations

will inure to the benefit of the respondent-shareholders by

protecting their investments in a properly maintained building"

(315-321 E. Parkway Dev. Fund Corp. v Wint-Howell, 9 Misc 3d 644,

648 [Civ Ct, Kings County 2005]). Further, the evidence in the

record shows that, for her safety, Plaintiff was informed to not

use the 2 nd Floor Roof Area while it was being repaired, and when

water accumulated, the Co-op ordered the contractor to remedy the

issue (NYSCEF Doc No. 120 [e-mail dated August 6, 2018 from

plaintiff to Derlaga] and 142 [e-mail dated August 7, 2018 from

Derlaga to contractor], respectively).

As to Plaintiff's claim related to the fire egress located on

the 2 nd Floor Roof Area, she "individually lacks standing to

maintain claims based on purported fire and building code

violations in the common areas of the building (involving access

to the fire escape/roof area of the building, and inspection of

the building's sprinkler system [. [ s] ince such claims

involve injury to the corporation, they can only be asserted

derivatively on behalf of the corporation" (White v Gilbert, 2012

NY Slip Op 32042[U], *23-24 [Sup Ct, NY County 2012]) Here, the

evidence submitted shows that the DOB issued the Co-op a violation

for failing to provide unobstructed exit passageway and directed

it to correct the issue (NYSCEF Doc No. 174, affidavit of

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plaintiff, exhibit 24). Notwithstanding the dispute on whether

the 2 nd Floor Roof Area is part of Plaintiff's demised premises,

there is no dispute that the fire egress is a common area of the

Building that other shareholders may access in case of a fire.

Such a claim is thus derivative and Plaintiff lacks standing to

maintain it individually based on a purported fire and a building

code violation.

Although Plaintiff cites the decision of the Appellate Term,

First Department, in Israel Realty LLC v Shkolnikov, for the

proposition that Defendants breached the warranty of habitability,

the facts of such case is distinguishable from those at bar. In

Israel Realty LLC v Shkolnikov, 59 Misc 3d 148[A], 2018 NY Slip Op

50812[U] [App Term, 1st Dept 2018]), the appeals panel held that

there was a breach of habitability because the tenant was unable

to use the patio area that was nearly twice the size of the interior

apartment, and thus an essential function that the residence was

expected to provide (id. at *2) Further, the scaffolding work in

Israel Realty LLC affected the air, light and ventilation inside

the apartment posing potential threats to the health and safety of

the tenant (id. at *2). Plaintiff has submitted no evidence that

such infiltration occurred in the instant case.

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For all the foregoing reasons, Defendants' motion to dismiss

Plaintiff's third and fourth causes of action is granted. 3

F. The Sixth Cause of Action for Negligence Against the
Co-op 4

For her sixth cause of action, Plaintiff alleges that the Co-

op had a duty to maintain the Building (including the 2 nd Floor

Roof Area) and to undertake repairs promptly and lawfully, which

they allegedly failed to do (NYSCEF Doc No. 89 at p. 8). Plaintiff

contends that such failure caused her to lose the opportunity to

sell the unit and the construction project damaged her property,

such as her plants and planters. Defendants argue, among other

things, that the claim is duplicative of her breach of contract

claim.

To prevail in a negligence claim, a plaintiff must demonstrate

"(1) the existence of a duty on defendant's part as to plaintiff;

(2) a breach of this duty; and (3) injury to the plaintiff as a

result thereof" (Akins v Glens Falls City School Dist., 53 NY2d

325, 333 [1981]) When a negligence claim "[i]s fundamentally no

3
In her fifth cause of action, Plaintiff alleges a breach of
fiduciary duty against the Co-op on the basis that the Co-op
ignored her requests to timely cure the conditions on the 2 nd Floor
Roof Area precluding her from its use (NYSCEF Doc No. 89 at p. 7).
The court already dismissed Plaintiff's breach of fiduciary duty
against the Co-op when it decided Defendants' motion to dismiss
(NYSCEF Doc No. 50, Court's Decision and Order).
4 As stated supra, this court previously dismissed all the claims

against Brown Harris. Consequently, the court will only address
the sixth cause of action in relation to the Co-op.
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more than a breach of contract claim, and, absent the allegations

of a duty owed by defendant independent of the contract (the

proprietary lease), a valid cause of action is not stated" (Wapnick

v Seven Park Ave. Corp., 240 AD2d 245, 247 [1st Dept 1997]; see

also Baker v 16 Sutton Place Apt. Corp., 2 AD3d 119, 121 [1st Dept

2003]). Further, courts have held that "there is no cause of action

for 'negligent performance of [a] contract' (Wapnickr 240 AD2d at

247)

Here, Plaintiff's alleges that the Co-op negligently made

repairs on the 2 nd Floor Roof Area. Assuming the 2 nd Floor Roof

Area is part of the leased premises, Plaintiff's negligence claim

is based on the same factual allegations as those on her breach of

contract claim. As the Co-op's duty to Plaintiff to make repairs

arises solely under the proprietary lease and seeks the same

damages, the claim is duplicative and barred by her claim for

breach of the proprietary lease.

G. The Seventh Cause of Action for Negligence Against the
Board

For her seventh cause of action, Plaintiff alleges that the

Board was negligent because it did not undertake prompt repairs in

the Building, including the repair work on the 2 nd Floor Roof Area

(NYSCEF Doc No. 89 at p. 8). She argues that such failure caused

her to lose her opportunity to sell the unit and the construction

project damaged her property. Defendants move to dismiss this

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cause of action on the same basis as their challenge to the sixth

cause of action.

Defendants' motion to dismiss Plaintiff's seventh cause of

action is granted. The business judgment rule is the legal

standard that applies in reviewing the Board's decisions made

within their authority, as "business judgment must rest with the

corporate directors" (Matter of Levandusky v One Fifth Ave. Apt.

Corp., 75 NY2d 530, 539 [1990] [ internal quotation marks and

citations omitted]; see also 40 W. 67th St. v Pullman, 100 NY2d

147, 149-150 [2003] ["the business judgment rule is the proper

standard for judicial review when evaluating decisions made by

residential cooperative cooperations"]).

"[T]he business judgment rule prohibits judicial inquiry into
actions of corporate directors 'taken in good faith and in
the exercise of honest judgment in the lawful and legitimate
furtherance of corporate purposes.' So long as the
corporation's directors have not breached their fiduciary
obligation to the corporation, 'the exercise of [their
powers] for the common and general interests of the
corporation may not be questioned, although the results show
that what they did was unwise or inexpedient.'"

(Matter of Levandusky, 75 NY2d at 537-538 [citations omitted]).

Here, the evidence shows that the Co-op's actions through the

Board's decisions concerning the repair project on the 2 nd Floor

Roof Area were in accordance with the provisions in the proprietary

lease and the Co-op' s bylaws. The actions taken were a proper

exercise of the Board's business judgment because it is within the

discretionary power of the Board to prescribe "the manner of

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maintaining and operating the building and what services and

attendants are proper" (NYSCEF Doc. No. 92, p. 4-5; see also NYSCEF

Doc No. 91, p. 7). The evidence before this court establishes that

the building-wide renovation project was conducted after damage

was found to exist on the 2 nd Floor Roof Area and the commercial

space below. The record at bar further shows that the repairs

made were necessary because the concrete slab damage was serious

and presented potential danger to not only Plaintiff, who was using

the 2 nd Floor Roof Area, but also to anyone in the retail space

below. Nor is there is any dispute that the project was approved

by the Board pursuant to the Co-op's bylaws, and the repairs thus

made to benefit the collective interest of the shareholders,

including Plaintiff.

There is no evidence in the record to indicate, nor does

Plaintiff argue, that the Board's decisions were not in furtherance

of the common and general interest of the corporation or that they

were made in bad faith. Instead, the evidence shows that the

repairs made to the 2 nd Floor Roof Area, the commercial space below,

and the roof of the Building were necessary, thoroughly

investigated and recommended by GMS or RKA. The multiple reports

generated by GMS and RKA demonstrate the seriousness of the damage,

the challenges that the Co-op faced in making such repairs, and

the steps it took to ensure that the repairs were being carried

out. "So long as the board acts for the purpose of the cooperative,

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within the scope of its authority and in good faith, courts will

not substitute their judgment for the board's" (Matter of

Levandusky, supra, 75 NY2d at 538).

Plaintiff does not dispute that the Board had the discretion

to decide how to undertake repairs. Instead, Plaintiff argues

that on their motion, under Matter of Levandusky, defendants bear

the burden of establishing, as a matter of law and fact, that in

undertaking and executing the repairs, the Board acted reasonably.

The court disagrees with plaintiff's interpretation, in that the

Court of Appeals in the Matter of Levandusky held that, although

the "reasonableness standard has much in common with the [business

judgment standard it] adopt[ed]", the business judgment standard

is "preferable" because ( 1) rather than requiring the board to

demonstrate that its decision was reasonable, the business

judgment standard requires the shareholder to demonstrate breach

of the board's fiduciary duty, and (2) the business judgment

standard does not require the court to evaluate the merits or

wisdom of the Board's decision, and instead gives deference to the

Board's business judgment (Matter of Levandusky, at 539). Contrary

to Plaintiff's arguments, the business judgment standard, not the

reasonableness test, governs the Board's decision, and the

Levandusky court reasoned that "the prospect that each board

decision may be subjected to full judicial review hampers the

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effectiveness of the board's managing authority" (id. at 540; see

also 40 W. 67th St. Corp., 100 NY2d at 150)

The evidence thus shows that the Board acted within the scope

of its authority, in good faith, and for the purpose of the

cooperative when it made the repairs in the Building. This

evidence is not rebutted by the Plaintiff .

.v-~ fl - } ~
20240312181021DJAMESDE1FA39CA1A64035960C8F9A32CCFDA6

3/12/2024
DATE DEBRA A. JAMES, J.S.C.

~
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9952491. Public record. Not legal advice.