Published: Winter 1995-1996

SIGNIFICANT LEGAL DECISIONS OF 1995

Not only do court decisions resolve issues for those who are directly involved, they also provide instruction for others who may find themselves in similar situations. To help cooperatives and condominiums keep track of new and important legal decisions, attorney Marc Luxemburg, president of CNYC, presents an annual seminar at the Cooperative Housing Conference reviewing the significant decisions handed down in that year.

CNYC thanks Mr. Luxemburg for the following article, selecting from his presentation a diverse array of interesting cases addressing the relationship between a cooperative and its shareholders.

Use of the Building's Facilities

Boards frequently clash with shareholders and unit owners who break the rules, and occasionally these confrontations end up in court. The board claims that it was simply enforcing rules made to benefit all shareholders, and the resident claims that the rules or the board or both are unreasonable. One question that often arises is such cases is, "When is a rule no longer enforceable?" In Katz v. 215 West 91st Street Corp., 626 NYS2d 796 (1st Dept. 5/23/95), a penthouse shareholder had planted thousands of pounds of lush garden on the roof. Co-op regulations restricted planters on the roof, but Katz argued that he had kept the planters there for years without the board enforcing the rule, so the board had waived the right to enforce it now. But the court did not accept this reasoning, noting that the inactivity of the board should not be treated as a waiver of the rules.

Shareholders also need board consent before they can make alterations. They can be directed to undo alterations made without consent. In Rutherford Tenants Corp. v. Kaufman, 622 NYS2d 691 (1st Dept. 2/14/95), the shareholder submitted plans to renovate the back stairway of his unit, but the plans did not show that he also planned to build a deck behind his apartment. When a deck suddenly appeared there, the co-op sought an order to have it removed. The court granted the order, stating that the structure should not have been erected without the board's consent.

Yet use cases don't always go the cooperative or condominium's way. In Starret City, Inc. v. Adamson, NYLJ, 4/12/95, p.30 (Civ. Ct. Kings Co.), the co-op tried to enforce a rule prohibiting the use of freezers in apartments. The shareholder, however, said she suffered from a "panic disorder" - she panicked every time she left the house, so she needed to stock up on food so she wouldn't have to go out as often. The court recognized this problem as a legitimate disability, and found that, under the Housing and Discrimination Act, an accommodation had to be found that would not cause "undue hardship" to the shareholder or the cooperative. The court allowed her to keep her freezer.

Boards should also be careful when they try to change rules and policies regarding use of building facilities. In Board of Managers of Builder's Apartment Corp. Condominium v. Caruso, NYLJ, 9/27/95, p. 25 (Civ. Ct. Queens Co.), the board tried to change a policy for using parking spaces in the building. The court found that a unit owner is a tenant of an assigned parking space, and the board could not change a policy set forth in the bylaws without the consent of the current tenants. The case was dismissed because the condominium had not served the proper notification to the tenants that it planned to change the rules.

Alterations

Alterations are a particularly serious topic, since improper work can cause serious physical damage to a building. In Heffernan and Shapiro v. Baltictown, Inc. NYLJ, 2/21/95, p. 36, c. 2 (Sup. Ct. Kings Co.), a shareholder had gone to the board for consent to combine two apartments. Agreements between the board and the shareholder concerning the renovation made the shareholder responsible for the appropriate changes to the building's certificate of occupancy (C of O), but the shareholder never obtained the amended C of O. After the shareholder sold the combined unit, the building received a violation for failure to amend the C of O. The board approached the new shareholder, asking him to amend the C of O and cure the violation. In court, this shareholder produced documents showing that he had been issued one stock certificate and one proprietary lease for the combined units, which proved that the cooperative already considered this to be one unit.

The court decided that the cooperative was responsible for curing the violation because the violation was served on the building, and because the problem was not caused by the shareholder currently occupying the apartment. The court found nothing in any of the co-op's documents that allowed the board to impose this burden on the new shareholder.

The board in this case should have been more vigilant. Either the board or the managing agent should have verified that the C of O had been changed at the completion of the renovation. Failing that, they should have been alert enough to catch this situation at the transfer, and should have then conditioned the transfer on curing the situation. If a transfer goes through without the buyer or seller curing the problem, then it becomes the board's responsibility.

Shareholders also make mistakes. In Ross v. The Dakota, Inc., NYLJ, 11/30/94, p. 26, C. 1 (App. T. 1st Dept.), a shareholder made an alteration that damaged the terra cotta structural arches of this landmark building. When a new shareholder bought the unit, he signed an alteration agreement and agreed to be responsible for repairs that did not involve structural arches. However, during the work, he discovered the arches were damaged and demanded that the board fix them. The court looked at the alteration agreement and said it interpreted the document to mean that the shareholder had agreed to take responsibility for everything, including what the previous shareholder had done.

Pets in Apartments

A cooperative is a little democracy, at least that is how it should be run. So if the majority of the people in this democracy decide that they do not want dogs in the building, then that should be the rule. Yet that's not always how it works, as a number of cases on this perennial topic seem to show.

Many cases fall under the New York City Pet Law, Section D26-10 of the Administrative Code, which has been deemed to apply to cooperatives. It places restrictions on the board's ability to control pets.

Trump Village Section 3, Inc. v. Sinrod, 1995 NY App. Div. Lexis 9243 (2nd Dept. 9/11/95), addressed the pet law limitations on enforcing no-pet policy - if the building does not object within three months of learning of the dog's arrival, then the dog stays. In this case, the shareholder claimed that Coco the dog was walked three times a day for seven months, passing the doorman, superintendent and porter each time, and this constituted "notice" to the board that there was a pet in the apartment. So when the board finally objected to Coco, the three-month limit had expired. The court decided that the shareholder had not proved that the co-op had been given notice, even though the facts seemed to be undisputed.

In Park Holding Co. v. Emicke, NYLJ, 7/24/95, p. 32, c. 3, a landlord found himself with a dog for life, or at least the life of a lease. A tenant replaced a deceased Great Dane with a new dog, and the landlord tried to prevent the new dog from living in the apartment. The tenant claimed that allowing the old dog to stay constituted a waiver of the no-pet rule - not just for the old dog, but for any subsequent dogs that the tenant brings in. The court agreed.

This may not have been what the law intended, but it is something that cooperatives should be aware of. If you fail to enforce a no-pet policy for the first pet, you will have difficulty evicting a replacement dog. This may not apply to multiple pets; future cases may address that aspect of the issue.

If a pet is deemed to be a nuisance, however, the pet law says that it can be evicted no matter how long it has lived in the building. Yet this isn't always a guarantee. In Lewis Morris Associates v. Perez, NYLJ, 1/11/95, p.30, c. 4 (Civ. Ct. Bronx Co.), the landlord sent the tenant a notice stating that, "You are harboring a Pit Bull Terrier in violation of the lease. Your dog barks at all hours of the day and evening, annoying the other tenants. The dog has been defecating and urinating on the landlord's property, causing foul and nauseating odors which disturb the other tenants. You have allowed your dog to freely roam around the premises without a leash, frightening the other tenants."

The court said that "common sense tells us that the notices are deficient because of the lack of particularity." It noted the landlord's "failure to provide the respondent with reasonable information to reasonably respond to the interrogatories" of when the occurrences arose, hours of the day that the dog was barking or urinating, where the odors were found, etc., and it threw out the case.

A Separate Part in Housing Court

The diversity of outcomes in cases regarding cooperatives has led CNYC and other organizations to request a separate part in the housing court to hear these cases. If judges familiar with the workings of cooperatives hear these cases, CNYC is convinced that we will have swifter and more consistent decisions. For more information on the proposed separate part in housing court, please see CNYC's Position Paper on Housing Court.

Sublet Fee Language for Bylaws, on this Web Site

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