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Cooperatives and Condominiums
Triable Issue of Fact About Association Liability for Flooding
McDonald v. Whitney Highland Homeowners' Association, Inc.
158 AD3d 1229, 2/9/18
AppDiv, Fourth Dept.
(memorandum opinion)
In unit owner's action against her homeowners' association for flooding caused by negligent maintenance of drainage pipes, unit owner appealed from Supreme Court's grant of summary judgment to the association. The Appellate Division reversed and reinstated the claim, holding that triable issues of fact remained about whether the pipes provided common benefit to multiple units.
Unit owner's unit was flooded during a severe rainstorm. She contends that the flooding was caused by inadequate maintenance of drainage pipes in her townhouse complex. The complex is governed by a homeowners' association, and the complex's declaration of covenants, conditions, and restrictions provides that the association has the duty to maintain pipes that service more than one unit, while the individual owns have the duty to maintain other pipes. The association contends that the offending pipe serviced only one unit, and that the association was not, therefore, responsible for its maintenance. Supreme Court agreed and granted summary judgment to the association.
In reversing, the Appellate Division agreed that the association had met its initial burden of establishing that the pipes serviced more than one unit by providing deposition testimony by a plumber asserting that the pipes provided drainage only for the affected unit. The court emphasized, however, that unit owner had submitted an affidavit from a professional engineer asserting that the pipes serve as a communal surface water drainage mechanism for the block of four townhouses to which unit owner's unit is attached. In light of this affidavit, the court held that questions of fact precluded summary judgment.
|Unit Owner's Representations Cannot Be Used to Contradict Express Terms of Proprietary Lease
Dogwood Residential, LLC v. Stable 49, Limited
NYLJ 3/14/18, p. 22., col. 4.
AppDiv, First Dept.
(memorandum opinion)
In unit owner's action for breach of the proprietary lease by failing to make private repairs to a private elevator and roof area, the co-op corporation appealed from Supreme Court's denial of its motion to dismiss and grant of unit owner's motion for leave to amend the complaint to assert a breach of fiduciary duty claim. The Appellate Division affirmed, holding that unit owner's representations before signing the proprietary lease could not be used to contradict the express terms of the lease.
The proprietary lease requires unit owners to maintain their own apartments, except for repair and maintenance of the building's structure, for which the co-op corporation is responsible. Before unit owner closed on its apartment, unit owner's principal made a representation that he would accept responsibility for repair of the elevator and roof. When unit owner brought this action, the co-op corporation contended that it had relied on unit owner's pre-closing representation, and that unit owner should be estopped from asserting a claim based on the co-op's alleged responsibility for repairs of those areas. Supreme Court initially agreed, but on reargument denied the co-op's motion to dismiss. The co-op corporation appealed.
In affirming, the Appellate Division emphasized the unambiguous lease provision, and concluded that the pre-closing representation could not contradict unambiguous terms in the proprietary lease. The court also held that the trial court had properly exercised its discretion in permitting unit owner to amend the complaint to set forth a breach of fiduciary duty claim.
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