Cooperatives & Condominiums

Co-Op Owner Does Not Establish Adverse Possession

10 East 70th Street, Inc. v. Gimbel

NYLJ 10/27/03, p. 25, col. 1

AppDiv, First Dept

(memorandum opinion)

In an action by co-op corporation for a declaration that it could insist upon removal of a terrace structure at unit owner's sole expense, unit owner appealed from Supreme Court's grant of summary judgment to the co-op corporation. The Appellate Division modified to remand for trial the issue of financial responsibility for removal of the structure, but otherwise affirmed.

Unit owner apparently sought and received permission from the co-op board and the Department of Buildings for construction of a greenhouse on roof areas of the building. Unit owner had previously used the roof areas. Unit owner then began construction of an apartment extension, and the co-op board then required removal of the extension to comply with fire regulations and to permit access for maintenance of the building facade. The co-op then brought this action for a declaratory judgment, and Supreme Court granted the declaration.

In modifying, the Appellate Division first observed that unit owner had failed to establish that the structure was built according to plans for the greenhouse. The court then held that the board's decision to require removal was shielded by the business judgment rule. The court also held that the unit owner had no established an adverse possession claim to the disputed roof areas because the record demonstrated that the unit owner had entered into possession permissively. The record established not that unit owner had title to the disputed areas, but that it held a revocable license. The court also held, however, that the extensive nature of the work suggested that the board and its management company had acquiesced in some of the work. As a result, an issue of fact remained concerning unit owner's obligation to assume sole financial responsibility for the expense of removing the structure. The court remanded for resolution of that issue.

Co-Op Owner Does Not Establish Adverse Possession

10 East 70th Street, Inc. v. Gimbel

NYLJ 10/27/03, p. 25, col. 1

AppDiv, First Dept

(memorandum opinion)

In an action by co-op corporation for a declaration that it could insist upon removal of a terrace structure at unit owner's sole expense, unit owner appealed from Supreme Court's grant of summary judgment to the co-op corporation. The Appellate Division modified to remand for trial the issue of financial responsibility for removal of the structure, but otherwise affirmed.

Unit owner apparently sought and received permission from the co-op board and the Department of Buildings for construction of a greenhouse on roof areas of the building. Unit owner had previously used the roof areas. Unit owner then began construction of an apartment extension, and the co-op board then required removal of the extension to comply with fire regulations and to permit access for maintenance of the building facade. The co-op then brought this action for a declaratory judgment, and Supreme Court granted the declaration.

In modifying, the Appellate Division first observed that unit owner had failed to establish that the structure was built according to plans for the greenhouse. The court then held that the board's decision to require removal was shielded by the business judgment rule. The court also held that the unit owner had no established an adverse possession claim to the disputed roof areas because the record demonstrated that the unit owner had entered into possession permissively. The record established not that unit owner had title to the disputed areas, but that it held a revocable license. The court also held, however, that the extensive nature of the work suggested that the board and its management company had acquiesced in some of the work. As a result, an issue of fact remained concerning unit owner's obligation to assume sole financial responsibility for the expense of removing the structure. The court remanded for resolution of that issue.