Board Denied Chelsea Co-op Unit Owner Permission to Improve Adjacent Roof Area

This was originally posted on the SGR Blog.

Owner Moved to Reargue Court’s Denial of Relief Sought Against Co-op/Board

Yetta Kurland is the proprietary lessee and shareholder of apartment 5C at 161 West 16th Street, New York, New York. 161 West 16th St. Owners Corp. is a cooperative housing corporation, which owns the building. According to Kurland, the Board of Directors of the co-op manages all maintenance and affairs of the building.

Kurland alleged in her complaint that she had undertaken a renovation project with respect to the apartment. The project included improvements to a portion of the roof area directly appurtenant to the unit– and to which the co-op board agreed. The complaint alleged that the board subsequently refused to sign the necessary forms, approvals and/or consents as required for Kurland to complete the renovations as they related to the roof. Kurland sued. Her complaint set forth causes of action for declaratory relief, injunctive relief, breach of contract, and a violation of Civil Rights Law § 52-a.

Kurland’s first claim sought a declaration that the board agreed to the renovations and that she was entitled to complete the work related to the roof– and to use the roof. The second claim sought an injunction, directing that the board comply with the agreement as it related to the roof and allow Kurland to use the roof and remove the surveillance cameras that were monitoring the roof. The third claim sought, in the alternative to the first and second claims, monetary damages as a result of the board’s alleged breach of the agreement in refusing to sign the necessary forms, approvals and/or consents as required for her to complete the roof portion of the renovations. The fourth claim sought monetary damages due to the board’s installation of surveillance cameras on the roof in alleged violation of Civil Rights Law § 52-a. The board interposed an answer with certain affirmative defenses, including that “[Kurland’s] alleged damages, if any, [were] caused by the acts or omission[s] of third parties over whom [they had] no control or responsibility and other circumstances for which [they were] not responsible.”

The Court granted the board’s motion for summary judgment and denied Kurland’s motion for a preliminary injunction. Kurland moved to reargue.

CPLR 2221 provides that a motion to reargue “shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion.” Reargument is not designed to afford the unsuccessful party successive opportunities to reargue issues previously decided or to present arguments different from those originally asserted.

In support of the motion, Kurland first contended that the Court interpreted Civil Rights Law § 52-a too narrowly and failed to consider fashioning an equitable remedy to compel the board to reposition or relocate the surveillance cameras on the roof so that they were not directed into her living room. Second, she asserted that the Court incorrectly held that the roof was part of the commercial unit. Third, she alleged that the Court incorrectly held that the residential unit did not have the authority to approve her alteration to the roof. Lastly, she argued that the Court employed the wrong standard in ruling on the claim based on equitable estoppel.

First, Civil Rights Law § 52-a(1) provides in relevant part that:

Any owner or tenant of residential real property shall have a private right of action for damages against any person who installs or affixes a video imaging device on property adjoining such residential real property for the purpose of videotaping or taking moving digital images of the recreational activities which occur in the backyard of the residential real property without the written consent thereto of such owner and/or tenant with intent to harass, annoy or alarm another person, or with intent to threaten the person or property of another person.

Civil Rights Law § 52-a(2) further provides that the term “`backyard’ shall mean that portion of the parcel on which residential real property is located which extends beyond the rear footprint of the residential dwelling situated thereon, and to the side and rear boundaries of such parcel extending beyond the rear footprint of such residential dwelling.”

The statute clearly did not provide a party with a private right of action relating to the installation of a camera on a roof, which was pointed toward the window of an apartment. The Court declined the invitation to rewrite the statute to provide for such a private right of action as that determination was properly left to the legislature.

Kurland incorrectly asserted that the Court held that the roof was part of the commercial unit. Rather, the Court reviewed the governing documents of the building and concluded that the declaration divided the building into the residential unit and the commercial unit, with the commercial unit having certain limited rights to the roof and the residential unit having none. Regardless, the Court previously considered and rejected Kurland’s contention that the residential unit had the authority to approve alterations to the roof and she failed to identify any matter of fact or law overlooked or misapprehended by the Court that would alter that conclusion.

Kurland contended that, as to the claim for equitable estoppel, the question was not whether the board agreed to the renovations on the roof, but whether it was reasonable for her to believe and rely upon her understanding that she was being allowed to complete the deck. In its prior decision, the Court viewed Kurland’s evidence in the light most favorable to her and noted the following: there was a proposal to create a roof deck on the roof, which was not subsequently included in the initial application for work; there was another proposal with revisions that included plans to replace a certain window in the apartment with different windows, but did not include a proposal to create a roof deck; the proposal was approved and an application for a permit was submitted, which did not include any reference to a deck; the proposal was further revised/amended, which did not include a proposal to create a roof deck that was approved; and the parties entered into a further agreement, which provided in pertinent part:

The Corporation has consented to the installation of the window model … provided that [Kurland] agrees by execution of this Rider that [Kurland] will not use the window as an entry to the roof of the adjacent unit owner, and will not, without the written consent of such owner of the adjacent unit, use said roof in any way or manner, including, without limitation, entry on that roof or permitting any person or pet of [Kurland] to enter onto said roof.

Although Kurland contended that the “adjacent unit owner” meant her neighbor in the residential unit or the commercial unit owner, that reading was unsupported by the Declaration in which the commercial unit owner was the only party to whom any rights to the roof were accorded. And there was no evidence that the board agreed to permit Kurland to complete the roof deck and no evidence that could have led her reasonably believe that they had agreed to permit her to do so.

Kurland’s motion to reargue was denied. And the Court adhered to its prior decision.

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