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Condominium Not Liable For Staging Rigging On Unit Owners’ Terraces

A Condominium is not liable to unit owners when it must use their terrace, a limited common element, to stage rigging for necessary repairs, and the unit owners must provide access for that purpose. Richstone v. Board of Managers of Leighton House Condominium, 2018 N.Y. App. Div. LEXIS 1143, 2018 N.Y. Slip Op. 1171 (1st Dep’t Feb. 20, 2018).  The plaintiffs in this case own “a penthouse unit that has the exclusive use of the condominium’s roof terrace, defined as a limited common element under the condominium’s bylaws and declaration.”  A water leak occurred affecting many units in the building.  To enable inspection and repair of the leak, the Condominium installed construction rigging on the terrace.  The plaintiffs’ ensuing lawsuit against the Condominium was dismissed.

Plaintiffs asserted a claim for breach of contract based on an alleged oral promise by the building manager that the rigging would be removed by a specific date. This claim failed because there was no consideration for the alleged promise, since plaintiffs “were already obligated under the bylaws and declaration to permit [the Condominium] access to the terrace to inspect and make necessary repairs to the building.”  “Plaintiffs’ argument that the building’s water leak was not an emergency and that therefore, under the bylaws, [the Condominium’s] access to the terrace had to be at their convenience,” was rejected because there was no showing that the Condominium had left the rigging in place longer than necessary in bad faith.  To the contrary, multiple inspections showed that the water leaks proved to be more extensive than originally believed, and the repairs were also delayed by two months of severe winter weather.

Plaintiffs’ claim for trespass failed because the Condominium had the right of access to the terrace and provided proper notice that it would exercise such right. A claim that the rigging had caused damage to a wooden deck that plaintiffs had erected on the terrace was dismissed based on “unrefuted evidence that plaintiffs installed the deck without [the Condominium’s] approval, in violation of the condominium’s governing documents, and without the requisite permit from the New York City Department of Buildings.”

The court dismissed all of plaintiffs’ claims and ruled for the Condominium on its counterclaim asserting that plaintiffs wrongfully interfered with access to the terrace. The court ordered plaintiffs to remove the unauthorized roof deck.  Because the Condominium’s counterclaims related to the same subject-matter as plaintiffs’ claims, the court also awarded the Condominium its “full attorneys’ fees and costs expended in this action” as well as its engineers’ fees, based on a By-Law provision authorizing such fees in connection with the abatement or cure of any breach or violation of the governing documents by a unit owner.  The court criticized the plaintiff unit owners for their “relentless litigation of [the Condominium’s] every step in correcting a leak condition and protecting the building.”