Cooperatives & Condominiums

Ambiguous Language Precludes Summary Judgment on Dispute over Use of Roof

Baker v. 16 Sutton Place Apartment Corp.

NYLJ 4/15/10, p. 35, col. 1

AppDiv, First Dept.

(memorandum opinion)

In an action by co-op unit owners to enjoin the corporation from using the common area roof as a garden, unit owners appealed from Supreme Court's denial of their summary judgment motion and grant of the co-op corporation's summary judgment motion. The Appellate Division modified to deny both motions, holding that both parties should be permitted to introduce extrinsic proof bearing on the meaning of the proprietary lease.

Unit owner owns shares associated with a penthouse apartment in the building. The penthouse includes a terrace that wraps around the apartment. The co-op corporation now plans to maintain a garden on the roof above unit owner's apartment. Unit owner contends that the co-op cannot use the roof for that purpose, relying on paragraph 7 of article 1 of the proprietary lease, which explicitly authorizes installation of radio and television antennae on the roof, but makes no mention of other uses. Unit owner invoked the principal “expressio unius, exclusio alterius” to argue that inclusion of one use impliedly prohibits others. Supreme Court disagreed and awarded summary judgment to unit owner

In modifying, the Appellate Division concluded that the language was ambiguous, and held that the language should not be construed against the drafter without the aid of extrinsic evidence to shed light on the meaning of the language. As a result, the court held that summary judgment should not have been granted.

No Evidence to Support Claim of Discrimination by Co-Op on Basis of National Origin

Sayeh v. 66 Madison Avenue Apt Corp.

NYLJ 5/10/10, p. 28, col. 3

AppDiv, First Dept.

(memorandum opinion)

In an action by co-op unit owner alleging discrimination on the basis of national origin, breach of fiduciary duty, and other claims against the co-op corporation, its board members, the management company, and the co-op's lawyer, unit owner appealed from Supreme Court's award of summary judgment to the co-op on all but its breach of contract claim. The Appellate Division affirmed, holding that unit owner had pointed to no evidence raising an inference of discrimination.

Unit owner, of Israeli origin, owned seven apartments in the co-op and sought to purchase an eighth unit. When the co-op board turned down his application, he brought this action. Subsequently, unit owner's lawyer demonstrated to the co-op corporation that the proprietary lease exempts from board approval all sales from one shareholder to another. At that point, the corporation conceded liability for breach of contract, but unit owner pressed on with his action for discrimination and breach of fiduciary duty. Supreme Court awarded summary judgment dismissing all claims except the breach of contract claim.

In affirming, the Appellate Division starting by noting that to prevail, unit owner had to come forward with evidence raising an inference of discrimination. In this case, conclusory allegations that the board had a dispute with another Israeli shareholder were insufficient to establish raise a triable issue of fact. Moreover, there was no evidence that the board treated non-Israelis differently from Israelis with respect to purchase of multiple apartments; the board was apparently unaware that the proprietary lease exempted sales to existing shareholders. The court also dismissed the breach of fiduciary duty claim, concluding that unit owner had come forward with no evidence of bad faith or tortious conduct.

Ambiguous Language Precludes Summary Judgment on Dispute over Use of Roof

Baker v. 16 Sutton Place Apartment Corp.

NYLJ 4/15/10, p. 35, col. 1

AppDiv, First Dept.

(memorandum opinion)

In an action by co-op unit owners to enjoin the corporation from using the common area roof as a garden, unit owners appealed from Supreme Court's denial of their summary judgment motion and grant of the co-op corporation's summary judgment motion. The Appellate Division modified to deny both motions, holding that both parties should be permitted to introduce extrinsic proof bearing on the meaning of the proprietary lease.

Unit owner owns shares associated with a penthouse apartment in the building. The penthouse includes a terrace that wraps around the apartment. The co-op corporation now plans to maintain a garden on the roof above unit owner's apartment. Unit owner contends that the co-op cannot use the roof for that purpose, relying on paragraph 7 of article 1 of the proprietary lease, which explicitly authorizes installation of radio and television antennae on the roof, but makes no mention of other uses. Unit owner invoked the principal “expressio unius, exclusio alterius” to argue that inclusion of one use impliedly prohibits others. Supreme Court disagreed and awarded summary judgment to unit owner

In modifying, the Appellate Division concluded that the language was ambiguous, and held that the language should not be construed against the drafter without the aid of extrinsic evidence to shed light on the meaning of the language. As a result, the court held that summary judgment should not have been granted.

No Evidence to Support Claim of Discrimination by Co-Op on Basis of National Origin

Sayeh v. 66 Madison Avenue Apt Corp.

NYLJ 5/10/10, p. 28, col. 3

AppDiv, First Dept.

(memorandum opinion)

In an action by co-op unit owner alleging discrimination on the basis of national origin, breach of fiduciary duty, and other claims against the co-op corporation, its board members, the management company, and the co-op's lawyer, unit owner appealed from Supreme Court's award of summary judgment to the co-op on all but its breach of contract claim. The Appellate Division affirmed, holding that unit owner had pointed to no evidence raising an inference of discrimination.

Unit owner, of Israeli origin, owned seven apartments in the co-op and sought to purchase an eighth unit. When the co-op board turned down his application, he brought this action. Subsequently, unit owner's lawyer demonstrated to the co-op corporation that the proprietary lease exempts from board approval all sales from one shareholder to another. At that point, the corporation conceded liability for breach of contract, but unit owner pressed on with his action for discrimination and breach of fiduciary duty. Supreme Court awarded summary judgment dismissing all claims except the breach of contract claim.

In affirming, the Appellate Division starting by noting that to prevail, unit owner had to come forward with evidence raising an inference of discrimination. In this case, conclusory allegations that the board had a dispute with another Israeli shareholder were insufficient to establish raise a triable issue of fact. Moreover, there was no evidence that the board treated non-Israelis differently from Israelis with respect to purchase of multiple apartments; the board was apparently unaware that the proprietary lease exempted sales to existing shareholders. The court also dismissed the breach of fiduciary duty claim, concluding that unit owner had come forward with no evidence of bad faith or tortious conduct.