Category Archives: Real Estate

Precariously Pitched Pipe Meets a Failed Flange at the Madison Square Condominium

This was originally published on the SGR Blog.

A high-rise residential condominium community is a creature of statute, characterized by many unique features that both govern day-to-day affairs, on the one hand, while leading to disputes and litigation, on the other.  So-called “common elements” are the responsibility of the board of managers to maintain and repair.  But, as a recent case involving an improperly-pitched/leak-causing pipe between to units demonstrates, what constitutes a “common element” is often a controverted question of fact.

Lisa Goldberg sued the Madison Square Condominium and George Higgins for breach of fiduciary duty, negligence and trespass as a result of recurring leaks in her apartment. The leaks came from the apartment above, which was owned by board member Higgins and Ali Reza Momtaz. Supreme Court granted a motion to dismiss various claims in the complaint. Goldberg appealed.

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Business Judgment Rule Not a License to Ignore POA Declaration

This was originally published on the SGR Blog.

Almost every aspect of residential community life and governance may be subject to differences of opinion, second guessing and litigation— the outcome of which may depend on the application of the “business judgment rule”. But, as a recent case demonstrates, that rule is irrelevant where the contested action violates the community’s governing document.

Peter Beckerman is a homeowner and member of the Lattingtown Harbor Property Owners Association, Inc. The POA is governed by the Board of Directors. On behalf of the POA, the Board entered into a license agreement with another member of the POA, Peter Tully. The license granted Tully the exclusive right to affix his private docks to the POA’s community dock in exchange for a yearly license fee and for services provided to the POA by his company.

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Neighbors at 25 CPW: “Nattering Nabobs of Negatavism”*

This was originally posted on the SGR Blog.

Charges and countercharges by apartment neighbors are commonplace in residential buildings. Occasionally, disputes involve facts, circumstances, personalities and conduct that, as a recent case shows, defy the ordinary.

25 CPW City Views, LLC and Hedy Sloan Stempler sought a preliminary enjoining Linda Cohen from:

(1)  contacting Stempler or any occupant of apartment 18H at 25 Central Park West;

(2)  appearing at the front door of 18H;

(3)  ringing the doorbell of 18H;

(4)  placing any material under the door of 18H;(5)  shouting, screaming, yelling, or engaging in physical or verbal threats directed at Stempler or any occupant of 18H;

(6)  engaging in any assault, abuse, harassment, or intimidation of Stempler or any occupant of 18H;

(7)  going onto the 18th floor of the apartment building;

(8)  interfering with comforts or conveniences of 25 CPW or Stempler; and

(9)  creating or permitting any disturbing noises or activities, including the creation of noxious odors, that interfere with 25 CPW or Stempler’s use and enjoyment of 18H.

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Will the Court Intervene? “[When] Smoke Gets in Your Eyes”

This was originally posted on the SGR Blog.

Some “neighborly” legal disputes are like an Agatha Christie “whodunit”. A recent forensic “thriller” involved two East 83rd Street apartment tenants who had lived in the building for 30 years, a nosy tenant next door and a ubiquitous building super—in a jurisprudential search for the “smoking [one]”.

The landlord imposed a smoke-free environmental policy in March, in the midst of the Coronavirus pandemic, which forced many of the building’s tenants to be home 24/7. Signage in the lobby requested that all smoking be done outside and at least 15 feet away from the building.

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“Water Closet” Brawl Ends in a Legal Draw

This was originally published on the SGR Blog.

Every square inch of space allotted to an apartment in an Upper East Side high-rise residential cooperative has utility and value. And, as appeared in a recent case, when the area in dispute is nine square feet outside a hallway door, the legal claims and issues escalate disproportionately.

Donald Fellner is the owner of shares and holder of a proprietary lease in co-op apartment 12C at 40 East 88th Street.  The residential cooperative is 44 East 88 Owners, Inc. And Orsid Realty Corp is the  managing agent.

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What is a (Door) Man to Do? Level of Lobby Care Required After a Storm

This was originally posted on the SGR Blog.

When it rains it pours. And sometimes litigation en(sues).

Janice Kasni lived at 30 Lincoln Plaza located on 30 West 63rd Street. Shortly after midnight, Kasni returned from an evening out, when she slipped and fell on the floor of the lobby. It had rained for much of day before the accident and long brown rugs had been placed from the doors to the lobby to the elevator bank.

When Kasni entered the building, she stepped onto the rug in front of the door and then headed left towards a couch that was near the entrance—and stepped off the rug and slipped on the floor.

Kasni testified at her deposition that she had taken up to two steps when both feet went out from under her and she fell backwards, flat onto her back. Prior to stepping on to the floor, she saw “the marble floor, that’s all.” Kasni did not notice any water or wet spots. Only after coming in from the rain, falling and lying on the floor, did Kasni first notice water on the marble floor. The water she saw was clear and was like a small puddle. Kasni was unable able to provide dimensions of the puddle and did not know how long the puddle had been there.

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What is a [Door]Man to do? Level of Inquiry Required When Tenant Brings a Guest

This was originally published on the SGR Blog.

Many luxury and other residential buildings in New York City feature doormen or other concierge services. Does the presence of such personnel create a duty to screen guests—and concomitant liability for the alleged failure to properly do so? A recent case addressed that question.

Zoe Denison sought damages for injuries sustained at the hands of Roxanne Woychowski, and the alleged negligence of the 300 East 57 Street, LLC, and Rudin Management Co. Inc. and others, that arose from a night on the town.

The court granted summary judgment and dismissed Denison’s claims against 300 East and Rudin. Denison asked the Court to reconsider the order.

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An Agreement to Agree is NOT Necessarily An Agreement to Agree

This was originally posted on the SGR Blog.

Juvenal Reis (tenant) and J.B. Kaufman Realty Co, LLC (landlord) signed a lease  in 2002 for real property in Long Island City. Over the years, Reis and Kaufman executed various letter agreements extending the terms of the original lease and providing for the lease of additional space within the  building.

In a document dated June 27, 2012, the parties “consolidate[d] all existing letter agreements to the same expiration date” of February 28, 2015. The 2012 letter agreement also stated that the terms of the lease were “extended to now terminate on Feb. 28, 2030,” with “terms to be determined at the expiration of this initial lease consolidation period.” The 2012 letter agreement further stated that any annual percentage increase in rent will not be less than five percent and will not exceed eight percent.

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If A Tree Falls…(Can I Sue?) Yes, Of Course…(But You May Not Win!)

This was originally published on the SGR Blog.

Rosemarie Russo and Joseph Ostrowsky sued their abutting neighbor, Kenneth Jay, in Small Claims court. The sought to recover for damage that they sustained after a branch from a tree, which was allegedly on Jay’s property, fell into their yard, damaging their fence. Ray counterclaimed to recover damages resulting from the Ostrowskys’ workers trespassing on his property.

At a nonjury trial, the Ostrowskys testified that, in 2016, debris from a tree on Jay’s property fell into their yard and damaged their pool fence. They had sent Jay a certified letter in 2016, informing him that he had several dead trees on his property, which represented a hazard to their land. Jay did not accept the letter. The Ostrowskys offered photographs taken in 2016 to support their position that the trees in Jay’s yard were in a deteriorated condition. Jay asserted that, in 2016, the debris from the tree fell as a result of an “act of God.” And that the Ostrowskys had not shown that a dangerous condition existed or that he had notice of such a condition.

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Trust But Verify: Failure to Memorialize Anticipated Extension of Time of the Essence Closing Date Leads to Loss of $937,500 Downpayment

This was originally posted on the SGR Blog.

Wishful thinking and expectations are not a legally cognizable and enforceable plan. The failure to document the adjournment of a time of the essence closing date recently cost the would be purchasers to lose a substantial million down payment.

Suncore Group SA, LLC sought to purchase real property in New York County from 1660 1st LLC. The purchase did not close on the date specified in the purchase agreement. 1660 took the position that the failure to close constituted a default by Suncore, thereby terminating the contract and entitling 1660 to retain Suncore’s down payment.

Suncore sought a declaratory judgment that 1660 was estopped from enforcing the default provision. And that Suncore was entitled to additional time in which to close on the purchase. 1660 counterclaimed, and sought a declaratory judgment that 1660 properly terminated the agreement, and that it was entitled to retain the downpayment (along with attorney fees and costs). 1660 moved for summary judgment on its counterclaims.

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