“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.

The dispute was over a very small area, approximately nine square feet, adjacent to Fellner’s apartment. The area is accessible through two doors, one opening onto the hallway outside the apartment and the other by way of a door in the kitchen. The door in the hallway is steps away from the main door to the apartment. By using the two doors, it is possible to access the apartment from the hallway.

Owners and Orsid called the disputed space a “water closet” and asserted that the space had always been a part of the “common areas” of the co-op. All the C-line apartments have identical “water closets”. Fellner claimed that the area was a part of his leasehold, appurtenant thereto, and/or owned by him in fee simple.

The dispute arose out of a decision by the co-op board to upgrade the electrical service in the building and to utilize the “water closets” in all the C-line apartments through the installation of vertical electrical conduits. After installation, the conduits blocked access to the “water closet” by the door in all the C-line apartments, including 12C. Fellner claimed he never received notice of the construction and that the notices issued by Owners and Orsid did not accurately describe that access to the “water closets” would be entirely blocked.

Fellner filed suit against Owners and Orsid and sought a preliminary injunction. The Court denied the application finding that Owners and Orsid came “forward with proof that [they] repeatedly advised [Fellner] of the impact of the electrical upgrade project” and he had “not demonstrated a likelihood of success on the merits”.

Fellner nevertheless pursued his complaint alleging nine causes of action: [1] declaration of easement by implication, [2] permanent injunction, [3] breach of covenant of quiet enjoyment, [4] private nuisance, [5] negligence, [6] declaratory judgment, [7] negligent misrepresentation, [8] breach of the implied covenant of good faith and fair dealing, and [9] wrongful eviction.  Owners and Orsid moved to dismiss the complaint.

Fellner’s first cause of action for declaration of an easement failed on its face and was dismissed. The basis of such a claim was that he was the owner or holder of title to an interest in real property. The factual claim in the complaint that Fellner was “the owner in fee simple” of the water closet was indisputably contradicted by the proffered evidence. At best, Fellner could claim only that the water closet was part of his apartment which made it part of his leasehold appurtenant to his shares in the co-op,  which is personal property, not real estate.

To state a claim for breach of the covenant of quiet enjoyment, Fellner had to allege conduct by Owner’s  that substantially and materially deprived him of the beneficial use and enjoyment of the apartment, either totally or partially. The Court found that Fellner sufficiently alleged he was ousted from a portion, albeit minor, of his leasehold apartment.

A private nuisance cause of action required allegations of (1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person’s property right to use and enjoy land and (5) caused by another’s conduct in acting or failing to act. Owners and Orsid asserted that the third and fourth elements were not stated because blocking one of two entrances to Fellner’s apartment was akin to “ordinary events” of apartment living and therefore not unreasonable The Court found that argument unmeritorious as a matter of law.  And the Court  rejected their claim that Fellner lacked a “property right to use and enjoy land” in the disputed hallway area.

The proprietary lease provided that “ the apartment’ means the room in the building as partitioned on the date of the execution of this lease designated by the above-stated apartment number, together with their appurtenances and fixtures and any closets, terraces, balconies, roof, or portion thereof outside of said partitioned rooms, which are allocated exclusively to the occupant of the apartment.”  Owners and Orsid did not submit evidence which unequivocally proved the disputed water closet was not included in apartment 12C. And nothing in the proprietary lease, coop by-laws, house rules, board minutes, floor plans or other governing documents defined the water closets as common areas. The Court noted that  it did not appear common areas were defined in those documents. Ambiguous or absent language in those documents rendered the resolution of whether the disputed area was a common area not resolvable on the motion. And the branch of the motion to dismiss Fellner’s fourth cause of action was denied.

The fifth cause of action in negligence was alleged only against Orsid, as managing agent. The claim failed as a matter of law because Orsid owed no duty to Fellner and he was not a third-party beneficiary of the agreement between Owners and Orsid. And, in any event, Fellner inconsistently alleged in his complaint that Orsid’s acts when it planned and executed the electrical upgrade were undertaken intentionally, not negligently.

As to the sixth cause of action for a declaratory judgment, the court may render a judgment having the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy. The general purpose of the declaratory judgment is to serve some practical end in quieting or stabilizing an uncertain or disputed legal relation either as to present or prospective obligations. Fellner sought a declaration that the proprietary lease did not authorize Owners and Orsid to enter his apartment and install the electrical conduits. Owners and Orsid were correct that the proprietary lease contained a right to enter Felner’s apartment to “make or facilitate repairs” or to “cure any default”. But they did not establish as a matter of law that the work performed constituted a repair or cure within the lease. To the extent their argument was premised on a claim the water closet was a common area, that failed based upon the Court’s finding that the characterization  of that space was in dispute. The motion to dismiss Fellner’s sixth cause of action was denied.

A claim for negligent misrepresentation required Fellner to demonstrate (1) the existence of a special or privity-like relationship imposing a duty on Owners and Orsid to impart correct information to him, (2) that the information was incorrect, and (3) reasonable reliance on the information. Liability for negligent misrepresentation may be imposed only on those persons who possess unique or specialized expertise, or who are in a special position of confidence and trust with the injured party such that reliance on the negligent misrepresentation was justified.

Owners and Orsid did not demonstrate conclusively that statements regarding the installation of the electrical risers were sufficient. Fellner was correct that none of the notices expressly stated that the work would permanently block access to the hallway  by means of the water closets in the C-line apartments. Accordingly, the branch of the motion to dismiss Felner’s seventh cause of action was denied.

For the complaint to state a cause of action alleging breach of an implied covenant of good faith and fair dealing, Fellner must have alleged facts which tended to show that Owner and Orsid sought to prevent performance of the contract or to withhold its benefits from the him. A claim is stated only when it is alleged that a party to a contract acted in a manner that, although not expressly forbidden by any contractual provision, deprived the other party of the right to receive the benefits under their agreement. Fellner specifically alleged that he was deprived of his implied use of access to his apartment based upon his express right to use common elements to facilitate this access. According, the motion to dismiss Fellner’s eighth cause of action was denied.

Fellner’s ninth cause of action for wrongful eviction failed as a matter of law. The blocking of ingress and egress through an alternate access point to the apartment did not constitute a depravation of a substantial portion of the apartment.

And Fellner’s second cause of action for a preliminary injunction also failed as a matter of law because the alleged wrongs could be adequately compensated by a money judgment and the other relief he sought appeared to be incidental.

The motion by Owners and Orsid to dismiss Fellner’s complaint was granted only to the extent that the first, second, fifth and ninth causes of action were dismissed. The balance of the motion was denied.

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