Cooperatives & Condominiums

Statute Does Not Require Resident Janitor for Condominium

Hatcher v. Board of Managers of The 420 West 23 Street Condominium

NYLJ 6/23/06, p. 29, col. 1

AppTerm, First Dept

(2-1 decision; memorandum opinion, partial dissent by McCooe, J.)

In an action by condominium unit owners against the condominium board for failing to provide a resident janitor, the board appealed from Civil Court's determination that the board had violated section 83 of the Multiple Dwelling Law. The Appellate Term annulled Civil Court's determination and held that the statute does not require a resident janitor when the building has a resident owner.

The subject condominium has 39 residential units and six professional units. The condominium board contracts for janitorial services, but does not provide a resident janitor. Section 83 of the Multiple Dwelling Law requires a resident janitor for any multiple dwelling of 13 or more families unless 'the owner does not reside therein.' Section 27-2054 of New York's Housing Maintenance Code provides that the person who performs janitorial services for a multiple dwelling of nine or more units shall reside within one block or 200 feet from the dwelling 'unless the owner resided in the multiple dwelling.' Unit owners brought this action contending that the board was obligated to provide a resident janitor because the board, as resident owner, did not personally provide janitorial services. Civil Court directed that the board provide a resident janitor and the board appealed.

In reversing, the Appellate Term noted that Civil Court had conceded that the board of managers of the condominium qualifies as a resident owner within the meaning of the statute. The court then noted that neither the statute nor the Housing Maintenance Code requires that the resident owner personally provide janitorial services, and the court saw no basis for implying such a requirement into the statutory language. The court therefore held that the board met its statutory and code obligation by providing a janitor who was properly certified as competent to provide janitorial services. Justice McCooe, dissenting in part, agreed with the majority 's construction of the statute, but contended that the condominium board had provided inadequate proof of the non-resident janitor's competence.

Declaration Does Not Authorize Fine for Garage Sale

Blumberg v. Albicocco

NYLJ 7/13/06, p. 24, col. 1

Supreme Ct., Nassau Cty

(O'Connell, J.).

In an action by condominium unit owner for a declaration that a fine imposed upon her is invalid and that the lien arising from imposition of the fine was also invalid, the condominium board sought summary judgment dismissing the complaint. The court denied the motion and awarded summary judgment to the unit owner, concluding that the declaration did not authorize imposition of a fine for conducting a garage sale.

Article XI of the condominium declaration provides that '[n]o nuisance shall be allowed upon the property nor shall any use or practice be allowed which is a source of annoyance to residents or which interferes with the peaceful possession and proper use of the property by its residents.' When the condominium board learned of unit owner's plan to conduct a garage sale on the premises, members of the board warned unit owner not to conduct the sale. She did so anyway, and the board fined her $250 a day, for a total of $500, for creating a nuisance and annoyance. The board also filed a lien against her unit. She then brought this action challenging the board's power to levy the fine and file the lien.

In awarding summary judgment to the unit owner, the court acknowledged that the business judgment rule gives wide latitude to condominium boards, but noted that the power claimed by the board must either be granted by statute or derived from the declaration or bylaws of the condominium. The court readily conceded that if the declaration had banned garage sales, the board would have been justified in imposing a fine on unit owner for conducting a sale. But the court held that the prohibition on nuisances and annoyances could not be read to prohibit conduct of a garage sale.

Statute Does Not Require Resident Janitor for Condominium

Hatcher v. Board of Managers of The 420 West 23 Street Condominium

NYLJ 6/23/06, p. 29, col. 1

AppTerm, First Dept

(2-1 decision; memorandum opinion, partial dissent by McCooe, J.)

In an action by condominium unit owners against the condominium board for failing to provide a resident janitor, the board appealed from Civil Court's determination that the board had violated section 83 of the Multiple Dwelling Law. The Appellate Term annulled Civil Court's determination and held that the statute does not require a resident janitor when the building has a resident owner.

The subject condominium has 39 residential units and six professional units. The condominium board contracts for janitorial services, but does not provide a resident janitor. Section 83 of the Multiple Dwelling Law requires a resident janitor for any multiple dwelling of 13 or more families unless 'the owner does not reside therein.' Section 27-2054 of New York's Housing Maintenance Code provides that the person who performs janitorial services for a multiple dwelling of nine or more units shall reside within one block or 200 feet from the dwelling 'unless the owner resided in the multiple dwelling.' Unit owners brought this action contending that the board was obligated to provide a resident janitor because the board, as resident owner, did not personally provide janitorial services. Civil Court directed that the board provide a resident janitor and the board appealed.

In reversing, the Appellate Term noted that Civil Court had conceded that the board of managers of the condominium qualifies as a resident owner within the meaning of the statute. The court then noted that neither the statute nor the Housing Maintenance Code requires that the resident owner personally provide janitorial services, and the court saw no basis for implying such a requirement into the statutory language. The court therefore held that the board met its statutory and code obligation by providing a janitor who was properly certified as competent to provide janitorial services. Justice McCooe, dissenting in part, agreed with the majority 's construction of the statute, but contended that the condominium board had provided inadequate proof of the non-resident janitor's competence.

Declaration Does Not Authorize Fine for Garage Sale

Blumberg v. Albicocco

NYLJ 7/13/06, p. 24, col. 1

Supreme Ct., Nassau Cty

(O'Connell, J.).

In an action by condominium unit owner for a declaration that a fine imposed upon her is invalid and that the lien arising from imposition of the fine was also invalid, the condominium board sought summary judgment dismissing the complaint. The court denied the motion and awarded summary judgment to the unit owner, concluding that the declaration did not authorize imposition of a fine for conducting a garage sale.

Article XI of the condominium declaration provides that '[n]o nuisance shall be allowed upon the property nor shall any use or practice be allowed which is a source of annoyance to residents or which interferes with the peaceful possession and proper use of the property by its residents.' When the condominium board learned of unit owner's plan to conduct a garage sale on the premises, members of the board warned unit owner not to conduct the sale. She did so anyway, and the board fined her $250 a day, for a total of $500, for creating a nuisance and annoyance. The board also filed a lien against her unit. She then brought this action challenging the board's power to levy the fine and file the lien.

In awarding summary judgment to the unit owner, the court acknowledged that the business judgment rule gives wide latitude to condominium boards, but noted that the power claimed by the board must either be granted by statute or derived from the declaration or bylaws of the condominium. The court readily conceded that if the declaration had banned garage sales, the board would have been justified in imposing a fine on unit owner for conducting a sale. But the court held that the prohibition on nuisances and annoyances could not be read to prohibit conduct of a garage sale.