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. 653335/2018 ALFORD, REBECCA vs. 72ND TENANTS CORPORATION Page 11 of34 Motion No. 002
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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. 653335/2018 ALFORD, REBECCA vs. 72ND TENANTS CORPORATION Page 19 of 34 Motion No. 002
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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. 653335/2018 ALFORD, REBECCA vs. 72ND TENANTS CORPORATION Page 29 of 34 Motion No. 002
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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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