Cooperatives & Condominiums

In affirming, the Appellate Division noted that the bylaws provide that the condominium board has 30 days to respond to written alteration requests, and that failure to response within 30 days would constitute consent to the proposed alteration, addition, or improvement. In this case, the condominium's submissions did not eliminate questions of fact about what requests the unit owner made of the condominium board, and what responses the condominium provided. As a result, the condominium had not established an entitlement to summary judgment.

Sponsor Did Not Breach Purchase Contract

Clements v. 201 Water Street LLC
NYLJ 1/29/18., p. 19., col. 3., AppDiv, First Dept.
(memorandum opinion)

In condominium purchasers' action against sponsor for a determination that the sale contract was void and that purchasers were entitled to return of their down payment, purchasers appealed from Supreme Court's dismissal of the complaint. The Appellate Division modified to declare in sponsor's favor, and to strike the declaration that tenants were not entitled to return of the down payment, holding that the contract remained valid and enforceable.

Purchasers agreed to buy the subject condominium unit while it was under construction. The agreement required the sponsor to set a closing date concurrently with or after obtaining certificates of occupancy for the building or for the subject unit, and required the sponsor to use best efforts to procure certificates of occupancy within two years of the issuance of the building's first temporary certificate of occupancy or the first unit's temporary certificate of occupancy. At a time when sponsor had not yet obtained certificates of occupancy, purchasers brought this action, contending that the agreement was unenforceable because it gave the sponsor sole and absolute discretion to set a closing date. Supreme Court disagreed and dismissed the complaint.

In modifying, the Appellate Division agreed with Supreme Court that the agreement was valid and enforceable because it required the sponsor to make best efforts to obtain the certificate of occupancy, and because the law implies a term requiring that closing occur within a reasonable time. The court, however, deleted the provision holding that purchasers were not entitled to return of the down payment, concluding that the determination was premature because purchasers might still close on the unit.

Unit Owners Did Not Have Exclusive Right to Elevator Shaft

Chu v. Klatskin
NYLJ 2/14/18, p. 30., col. 5., AppDiv, First Dept.
(memorandum opinion)

In an action by condominium unit owners to establish an exclusive right to a portion of a decommissioned elevator shaft, unit owners appealed from Supreme Court's dismissal of the complaint. The Appellate Division affirmed, holding that the unit owners' claim was precluded by the condominium declaration.

Unit owners own the only units on the 11th floor of the condominium building and claimed exclusive rights to the 11th floor portion of a decommissioned and ultimately removed freight elevator shaft adjected to the wall of their joined residential units. They relied on language in the declaration giving the owners of two or more units who benefit exclusively from an adjacent or appurtenant common element the exclusive right of use of that common element. Supreme Court dismissed their complaint, and unit owners appealed.

In affirming, the Appellate Division focused on another provision in the condominium declaration providing that the elevators and elevator shafts are common elements except that “two of the elevators are reserved for the exclusive use of the Residential Unit Owners and one elevator is reserved for the exclusive use of the Commercial Unit Owners.” Because the freight elevator adjacent to unit owners' units belonged to the commercial owners at the time unit owners purchased their units, unit owners did not have rights to the elevator or elevator shaft. Nothing in the language of the condominium's governing documents had changed since that time.