Board of Managers of Manhattan Valley Townhouses v. Murovich

273 A.D.2d 11, 708 N.Y.S.2d 111, 2000 N.Y. App. Div. LEXIS 6101

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 1, 2000
• Status: Published

Opinion

Order and judgment (one paper), Supreme Court, New York County (Paula Omansky, J.), entered August 27, 1999, which, upon plaintiff condominium’s motion for summary judgment, declared in its favor that defendants owner and occupant of the subject unit violated plaintiffs by-laws and rules and regulations by installing black plexiglás over the iron gates enclosing the vestibule under the stairway in front of the door to their unit without obtaining plaintiffs prior consent, and granted related injunctive relief, unanimously affirmed, with costs.

Defendants’ argument that plaintiff waived its right to enforce the “prior consent” rule as against their plexiglass installation because it did not enforce the rule as against two other unit owners who installed black plexiglás over their gates was properly rejected by the IAS Court in view of the plain differences between the entrances of the units being compared. In particular, the gates over the doors to the two other units are flush with the building wall and therefore, unlike the gates to defendants’ unit, which are at right angles to the building wall, do not encompass a vestibule, admittedly a common element as to which no alterations may be made without plaintiffs prior consent. No issue of fact as to a waiver is raised absent any evidence of a plexiglás installation to a unit configured like defendants’ unit. We have considered and rejected defendants’ other arguments. Concur — Williams, J. P., Tom, Mazzarelli, Rubin and Friedman, JJ.