'Up On The Roof'


When this old world starts getting me down

And people are just too much for me to face

I climb way up to the top of the stairs

And all my cares just drift right into space...[*]

Every aspect of residential cooperative or condominium life sooner or later becomes the subject of disagreement. And disputes as to responsibility for maintaining, and the right to use or build on, the roof are frequent in our Courts. A few recent examples follow:

Hersh v. One Fifth Ave. Apt. Corp., 2018 NY Slip Op 05522, App. Div. 1st Dept. (July 26, 2018)

Supreme Court granted defendant's motion to dismiss the claim for breach of fiduciary duty and denied plaintiff's motion to amend the complaint.

The Appellate Division summarized the facts and complaint:

In this case, plaintiff alleges that her apartment sustained extensive water infiltration due, in large part, to the condition of the greenhouse on the roof terrace located on the floor above her. According to plaintiff, the individual owners of the offending greenhouse (defendants Alan Belzer and Susan Martin), the cooperative (defendant One Fifth Avenue Corp.), and the individual board members failed to adequately address and remedy the situation, and their failure to act resulted in catastrophic water damage to plaintiff's apartment[.]

And affirmed dismissal of the complaint as against the individual cooperative board member:

It is well-settled that a breach of fiduciary duty claim does not lie against individual cooperative board members where there is no allegation of "individual wrongdoing by the members...separate and apart from their collective actions taken on behalf of the" cooperative...Here, the complaint does not allege that any of the individual board members committed an independent wrong that was distinct from the actions taken as a board collectively. Thus, the breach of fiduciary duty claim is not viable. Because the proposed amended complaint fails to cure this deficiency, plaintiff's motion seeking to amend the complaint was properly denied.

Contrary to plaintiff's contention, this result is entirely consistent with Fletcher v Dakota, Inc....In Fletcher, we concluded that "although participation in a breach of contract will typically not give rise to individual director liability, the participation of an individual director in a corporation's tort is sufficient to give rise to individual liability"...Thus, we declined to dismiss claims against a cooperative board director who was alleged to have participated in the cooperative's violation of the State and City Human Rights Laws.

Here, in contrast, there is no viable corporate tort alleging breach of fiduciary duty, because a corporation owes no fiduciary duty to its shareholders...Thus, in the absence of a corporate tort in which the individual board members could have participated, the breach of fiduciary duty claim as against them was properly dismissed. Indeed, Fletcher made this very point by dismissing the breach of fiduciary duty cause of action against an individual board director, while at the same time sustaining Human Rights Law claims against him.

Fairmont Tenants Corp. v. Braff, 2018 NY Slip Op 04083, App. Div. 1st Dept. (June 7, 2018)

Supreme Court granted Fairmont's motion for summary judgment, denied Braff's motion for summary judgment and declared that the cooperative had right, title and interest to the roof adjacent to units 2F and 2G and enjoined Braff from occupying or using that space.

The Appellate Division summarized the dispositive provision of the proprietary lease:

There are no issues of fact requiring a trial. The proprietary lease defines the apartment as "the rooms 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" (emphasis added). This clause is ambiguous because it is unclear from the lease whether the disputed roof area has been exclusively assigned to defendants. As such, the court properly looked to extrinsic evidence, including the offering plan, which is a "controlling document" that gives the proprietary lease meaning...The offering plan makes clear that there is no outdoor space allocated exclusively to defendants' apartment.

And concluded that:

Supreme Court also properly granted plaintiff summary judgment dismissing defendants' waiver defense and counterclaim. Paragraph 26 of the lease addresses "facilities outside the apartment," and under this provision, the Coop has a revocable license to that area...Further, the coop's knowledge of defendants' use of the roof space does not raise issues of fact regarding the coop's waiver of a right under the lease in light of an unambiguous no waiver clause[.]

Supreme Court also properly dismissed defendants' adverse possession defense and counterclaim. It is undisputed that defendants have permitted workmen on the roof at issue in 2015, and that they have given access to the roof space to building staff from time to time. Accordingly, the court properly found that defendants' use of the roof space was not "exclusive" for any period of time prior to 2015[.]

Finally, defendants' continued trespassing on the roof space entitles the coop to injunctive relief as the irreparable injury is the interference with the coop's property rights[.]

Lee v. Scott, 2018 NY Slip Op 31029(U), Sup. Ct. N.Y. Co. (May 29, 2018)

Supreme Court, entertaining plaintiff's motion for summary judgment in a roof rights dispute, summarized the background:

In September 1996, sponsor Bennco Properties, Inc....converted a five-story garage into a mixed-use condominium building...pursuant to the Offering Plan. Stefan Benn...was the principal of Bennco. Le Toulouse Condominium is located at 79-81 East 2nd Street, New York, New York. Charles W. Weiss, attorney for the Sponsor, filed the Declaration of Condominium and By-Laws...in December 1996. Article Fourth of the Declaration provided for five total units — four residential units and one commercial unit...The Declaration zoned Unit C-1 for commercial and residential use, and restricted the four remaining units, Units R-1 to R-4, to single family residential use only...Each residential unit occupies one floor of the second through fifth floors of the Condominium.

In February 2004, Bennco transferred ownership of residential Unit R-3 and Unit R-4 to Stefan Benn. In December 2012, Benn transferred ownership of Units R-3 and R-4 to the LGB Family LLC...with Benn as its sole Managing Member. Defendant Charles Weiss, individually, and through Charles W. Weiss, P.C. acted as the building's attorney from 2007-2012. Weiss helped to draft the 1996 Offering Plan. Plaintiffs Patricia Lee...and Marc Lester...purchased the one commercial unit ("Unit C-1") in September 2011 from defendant Michael Scott...Lee currently serves as the President of the Board of Managers of the Condominium.

The dispute:

The dispute between the parties concerns the right to use and build on the Condominium's roof. Plaintiffs allege that the Benn Defendants do not own the Condominium's roof, and that the Declaration and By-Laws do not grant any rights to construct any material structure on the roof. Plaintiffs argue, instead, that the no unit owner can access the roof for any reason other than for repair and maintenance with Board permission...Plaintiffs also argue that the roof is commercial space, and therefore, only plaintiffs have access and use of the roof...Defendants Benn allege, inter alia, that the March 2010 Third Amendment and the December 2012 Third Amendment read together, grant Unit R-4 extended roof rights, including the right to build a Penthouse apartment, swimming pool, and lawn...In addition, defendants Benn contend that the Declaration always provided that the roof deck is a limited common area for the exclusive use of Unit R-4's owner[.]

The declaration and by-laws:

Under the Declaration and By-Laws, the roof contains General Common Elements, including a caretaker's room and bathroom, the former freight elevator tower, and stairwell bulkhead, and a Limited Common Element roof deck...The Offering Plan lists the stairwells, lobby, and a portion of the roof deck (stairway bulkhead and 46 square feet of roof space) as "shared residential common elements." Schedule C, under the Declaration...

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