Alford v 72nd Tenants Corp.

2024 NY Slip Op 30822(U)

March 12, 2024

Supreme Court, New York County

Docket Number: Index No. 653335/2018

Judge: Debra A. James

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.
NYSCEF DOC. NO. 233 

INDEX NO. 653335/2018 

RECEIVED NYSCEF: 03/12/2024 

SUPREME COURT OF THE STATE OF NEW YORK 

NEW YORK COUNTY 

PRESENT: HON. DEBRA A. JAMES 

Justice 

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REBECCA ALFORD, 

Plaintiff, 

- V -

72ND TENANTS CORPORATION, BROWN HARRIS 

STEVENS RESIDENTIAL MANAGEMENT, LLC, and 

BOARD OF DIRECTORS OF 72ND TENANTS 

CORPORATION, 

Defendants. 

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PART 59 

INDEX NO. 653335/2018 

MOTION DATE 06/08/2023 

MOTION SEQ. NO. 002 

DECISION + ORDER ON 

MOTION 

The following e-filed documents, listed by NYSCEF document number (Motion 002) 87, 88, 89, 90, 91, 

92, 93, 94, 95, 96, 97, 98, 99,100,101,102,103,104,105,106,107,108,109,110,111,112,113,114, 

115,116,117,118,119,120,121,122,123,124,125,126,127,128,129,130,131,132,133,134,135, 

136,137,138,139,140,141,142,143,144,145,146,147,148,149,150,151,152,153,154,155, 156, 

157,158,159,160,161,162,163,164,165,166,167,168,169,170,171,172,173,174,175,176,177, 

178,179,180,181,182,183,184,185,186,187,188,189,190,191,192,193,194,195,196,197,198, 

199,200,201,202,203,204,205,206,207,208,209,210,211,212,213,214,215,216,217,218,219, 

220,221,222,223,224,225,226,227,228,229,230 

were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER 

ORDER 

ORDERED that the motion of defendants for summary judgment is 

granted, and the complaint is dismissed in its entirety, with costs 

and disbursements to defendants as taxed by the Clerk upon the 

submission of an appropriate bill of costs; and it is further 

ORDERED that the Clerk is directed to enter judgment accordingly. 

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DECISION 

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Plaintiff Rebecca Alford ("Plaintiff"), a tenant shareholder, 

brings this action against the 72 nd Tenant Corporation ("the Coop"), Brown Harris Stevens Residential Management ("Brown Harris") 

and the Board of Directors of 72 nd Tenant Corporation ("the Board") . 

She alleges that the roof area adjacent to her apartment ("2 nd 

Floor Roof Area") is a terrace and is part of the leased premises 

under her proprietary lease agreement. Plaintiff asserts multiple 

claims, including breach of contract against the Co-op for 

allegedly failing to maintain the building and the 2nd Floor Roof 

Area in good repair. 

The Co-op and the Board (together, "Defendants") move for 

summary judgment pursuant to CPLR § 3212. Plaintiff opposes the 

motion. 

Defendants' motion is granted for the reasons stated below. 

BACKGROUND FACTS AND PROCEDURAL HISTORY 

The Co-op 

The Co-op is a residential cooperative corporation that owns 

the apartment building located at 125 East 72 nd Street in Manhattan 

("the Building"), and Brown Harris is the managing agent for the 

Building (NYSCEF Doc No. 92, Mazzola affirmation, exhibit D, 

Proprietary Lease, p. 3; NYSCEF Doc No. 231, Mazzola affirmation, 

exhibit G, Derlaga deposition transcript at p. 9:4-14). The Co-op 

is governed by its by-laws, and its Board has, in pertinent part, 

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discretionary power to "prescribe the manner of maintaining and 

operating the apartment building of the corporation, and any other 

premises acquired by the corporation by purchase or otherwise" 

(NYSCEF Doc No. 92, Mazzola affirmation, exhibit D, Proprietary 

Lease, p. 4-5 and NYSCEF Doc. No. 91, By-Laws, p. 7). The Board 

may also change the house rules applicable to the Building whenever 

it deems necessary, which are binding on all tenants of the 

Building (NYSCEF Doc. No. 91, id., pp. 7-8). 

The Co-op leases its apartments to tenant shareholders who 

have the exclusive right to possess their apartments (NYSCEF Doc. 

No. 91, p. 14). The Co-op uses a form of proprietary lease adopted 

by the Board (id., p. 14). All proprietary leases are executed in 

the same form, except for the statement related to the number of 

shares of stock owned by each shareholder (id.) 

Apartment 2B 

On November 3, 1993, Plaintiff and her late husband purchased 

535 shares from the Co-op for apartment 2B ( "the Apartment") 

(NYSCEF Doc. No. 92, Proprietary Lease; NYSCEF Doc. No. 154, 

Assignment; NYSCEF Doc. No. 150, affidavit of Plaintiff, <JI 6). 

Adjacent to the Apartment is the 2nd Floor Roof Area, the subject 

of the dispute in this action, which Floor Roof Area is located 

above a commercial space on the first floor of the Building. 

(NYSCEF Doc. No. 231 [replacing illegible NYSCEF Doc. No. 95], 

deposition transcript of Brown Harris property manager John 

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Derlaga, at p. 89:14-20). Defendants contend that none of the 535 

shares allocated to apartment 2B, (which apartment has the lowest 

square footage and the least amount of shares allocated to any of 

the Bline apartments), account for the 2nd Floor Roof Area (NYSCEF 

Doc. No. 88, Mazzola affirmation, ~ 9; NYSCEF Doc. No. 97, Plan of 

Cooperative Organization, at p. 31) 

The 2nd Floor Roof Area consists of a large flat square with 

a long section leading to a fire escape in case of an emergency 

(NYSCEF Doc. No. 150, affidavit of Plaintiff at~ 7). There are 

two access points to the 2nd Floor Roof Area: one from Plaintiff's 

dining room and the other through the egress that is part of the 

fire escape (NYSCEF Doc. No. 231, id., p. 35:4-11). Although other 

shareholders can access the 2nd Floor Roof Area through the egress 

in instances of emergency, Plaintiff, otherwise, has exclusive 

access to the space (NYSCEF Doc. No. 150, at~~ 7, 22, 27; NYSCEF 

Doc No . 2 31 , at p . 3 9 : 7 - 9, p . 4 0 : 2 3 - 2 5, p . 4 1 : 2 ) . 

Plaintiff attests that the 2nd Floor Roof Area, which she 

refers to as "her terrace," was the main inducing factor for her 

and her late husband's purchase of the Apartment, and that she has 

used the terrace since 1993 (NYSCEF Doc. No. 96, Mazzola 

affirmation; NYSCEF Doc. No. 96, Plaintiff's tr at p. 28:8-25 and 

p. 29:2-9; NYSCEF Doc. No. 150, id.). On the square portion of 

the 2nd Floor Roof Area, she has hosted parties, installed light 

fixtures, and kept plants and outdoor furniture (NYSCEF Doc. No. 

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150, id., at~ 34). The Co-op also replaced a spigot she used to 

water her plants (id., ~ 31). 

Plaintiff contends that the Co-op has always acknowledged her 

right to use the 2nd Floor Roof Area as a terrace and has 

continuously referred to the space as a "terrace" (id., ~~ 36-42). 

Plaintiff also attests that the 2nd Floor Roof Area was historically 

used as a terrace by previous shareholders as well, as evidenced 

by the built-in flower beds and the glass mirrors hung alongside 

the lattice fences at the time of her purchase in 1993 (id., ~~ 

23-25) . 

The Proprietary Lease 

Plaintiff and her deceased husband are the assignees of the 

proprietary lease for the Apartment (NYSCEF Doc No. 154, Closing 

Statement; NYSCEF Doc. No. 150, affidavit of plaintiff, ~ 6). 

The proprietary lease agreement states in pertinent part that 

the lessee, 

"upon paying the rent and performing the covenants and 

complying with the conditions on the part of the Lessee to be 

performed and complied with, as herein set forth, shall, at 

all times during the terms hereby granted, quietly have, hold 

and enjoy the apartment without any let, suit, trouble or 

hinderance from the Lessor" 

(NYSCEF Doc. No. 92, p. 9, Lease, Article I, ~ 8). A "lessee of 

an apartment embracing a penthouse, balcony or terrace or a portion 

thereof shall have and enjoy the exclusive use of the balcony or 

terrace appurtenant to such apartment subject to all the applicable 

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provisions of this lease and to the use of such balcony or terrace 

by the Lessor to enable it to fulfill its obligations hereunder" 

(id., Lease, Article I, ~ 7). If the apartment includes a balcony 

or terrace, the lessee is "obligated to keep such terrace or 

balcony clean and free from ice or snow, and to provide and 

maintain proper drainage therefor," and "shall be responsible for 

the maintenance and repair thereof" (id., p. 15, Article II, Lease 

As to repairs, the proprietary lease states in pertinent part: 

"The Lessor shall keep in good repair the foundations, 

sidewalks, gardens, walls, (except ceilings, floors, interior 

walls of apartments), supports, beams, roofsr terraces, 

gutters, fences, cellars, chimneys, laundry and storage 

space, entrances and street and court doorways, public halls, 

public stairways, windows, fire escapes, elevators, pumps and 

tanks, and all pipes and electrical conduits, together with 

all plumbing, heating, and other apparatus intended for the 

general service of the building, except those portions of any 

foregoing which it is the duty of the Lessee to maintain and 

keep in good repair as provided in paragraph Seventh of 

Article II hereof . [t]he covenants by the Lessor herein 

contained are subject, however, to the discretionary power of 

the Board of Directors of the Lessor to prescribe from time 

to time the manner of maintaining and operating the building 

and what services and attendants are proper, and subject to 

the further proviso that there shall be no diminution or 

abatement of rent or maintenance charge or other compensation 

for the failure by the Lessor to perform any service or 

obligation or for interruption or curtailment of service, 

when such failure, interruption or curtailment shall be due 

to accident or to alterations or repairs desirable or 

necessary to be made, or to inability or difficulty in 

securing supplies or labor, to some other cause not negligence 

on the part of the Lessor . " 

(id., p. 6, Lease, Article I, Lease~ 1 and 2. 

further provides, in pertinent part that: 

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The lease 

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"No diminution or abatement of rent, or other compensation, 

shall be claimed or allowed for inconvenience or discomfort 

arising from the making of repairs or improvements to the 

building or its equipment and appliances, (except in the case 

of damage so extensive as to render the apartment untenantable 

as provided in Article I, paragraph Third) or from any action 

taken to comply with the law, ordinance or order of a 

governmental authority. 

( id . , p . 2 0 , Le as e , Article I I , <JI 1 6 ) . 

Construction Performed on the 2nd Floor Roof Area 

The evidence in the record shows that the repair work on the 

2nd Floor Roof Area commenced in 2018 and was completed in 2020. 

In January 2018, the Co-op's professional engineer, Gilsanz 

Murray Steficek LLP ("GMS"), inspected the commercial space below 

the Apartment and discovered significant cracks and damage to the 

concrete slab supporting the 2nd Floor Roof Area (NYSCEF Doc No. 

101, Mazzola affirmation, exhibit M) The Co-op subsequently 

retained GMS to oversee the construction of the commercial space 

and the slab repair of the 2 nd Floor Roof Area (NYSCEF Doc. No. 

105, Mazzola affirmation, exhibit Q). 

To carry out the construction work per the GMS drawings and 

oversight, the Co-op hired a contractor, Pali Building 

Restoration, Inc. ("Pali") (NYSCEF Doc. Nos. 102 and 103, Mazzola 

affirmation, exhibits N and O). Rick Kramer Architects ("RKA") was 

tasked to oversee, among other things, the roof and parapet repair 

work on the 2 nd Floor Roof Area, (NYSCEF Doc No. 106, Mazzola 

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affirmation, exhibits R) . RKA' s role in the project was later 

expanded by the Co-op to include the Building's facade. 

Before the repair project began, the Co-op applied for a 

construction permit with the New York City Department of Buildings 

("DOB") (NYSCEF Doc. Nos. 110-111, Mazzola affirmation, exhibits 

V and W), which was not issued for approximately four months 

(NYSCEF Doc. No. 114, Mazzola affirmation, exhibit Z). Once issued 

by DOB, the construction permit was subject to Pali updating its 

proof of insurance (id.). 

The Co-op also filed an application for approval of the 

planned alterations with the New York City Landmarks Preservation 

Commission ("LPC") because the Building is landmarked (NYSCEF Doc. 

No. 113, Mazzola affirmation, exhibit Y). 

Once the construction work on the 2nd Floor Roof Area began 

on July 25, 2018, the Co-op faced many delays. At the inception 

of the project, John Derlaga, the Building's manager, reached out 

to Pali and expressed his frustration that there were not enough 

workers on site (NYSCEF Doc. Nos. 122-124, Mazzola affirmation, 

exhibits HH, I I and J J) Additionally, GMS determined, through 

multiple probes, that the damage was much more serious than 

initially anticipated. 

When GMS inspected the slab repair work that was performed in 

September, October and December of 2018, it concluded that Pali's 

work did not conform to drawing specifications, its welder was not 

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licensed and the welds were of poor quality (NYSCEF Doc. Nos. 125-

127 & 131, Mazzola affirmation, exhibits KK, MM QQ). In December 

2018, RKA also submitted an amendment to the ongoing repair project 

in the Building and explicitly stated that all work was to be 

performed only when the exterior temperature was at 45 degrees 

(NYSCEF Doc. No. 129, Mazzola affirmation, exhibit 00) 

In February 2019, the Co-op expanded the repair work to 

include the Building's roof. Specifically, Derlaga informed all 

shareholders by letter that the construction work in the Building 

would expand to include the replacement of the parapets and the 

floor of the 2nd Floor Roof Area, repairs to the commercial space, 

and repairs to the Building's roof, with all work due to be 

completed by the end of the summer (NYSCEF Doc. No. 132, Mazzola 

affirmation, exhibit RR). During that time, Pali was going out of 

business and wrapping up its operations causing the Co-op to retain 

Pofi Construction Corporation ("Pofi") as the new contractor for 

the repair work (NYSCEF Doc. No. 231 at pp. 201, 207) 

The 2nd Floor Roof Area repairs were completed by February 

2020, excluding the installation of the pavers because Plaintiff 

alleged that the existing pavers contained lead (NYSCEF Doc Nos. 

136-137, Mazzola affirmation, exhibits VV and WW, Seth Roye tr pp 

133-134). However, the construction project was temporarily shut 

down in mid-March of 2020 due to the COVID-19 pandemic (NYSCEF 

Doc. No. 138, Mazzola affirmation, exhibit XX). 

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When work resumed in July 2020, Pofi installed the pavers on 

the 2nd Floor Roof Area after testing confirmed that they did not 

contain lead (NYSCEF Doc Nos. 139-140, Mazzola affirmation, 

exhibits YY and ZZ) . By September 2 02 0, the 2nd Floor Roof Area 

repair project was completed except for punch list items (NYSCEF 

Doc No. 141, Mazzola affirmation, exhibit AAA). 

During the time that the construction project was taking place 

on the 2nd Floor Roof Area, the Co-op informed Plaintiff of the 

damage identified by GMS and directed her to cease using the space 

(NYSCEF Doc. Nos. 102-103, Mazzola affirmation, exhibits N and O). 

At one point when the repairs were being made, the conditions from 

the construction caused water accumulation on the 2 nd Floor Roof 

Area, which the Co-op ordered Pali to address the very next day 

(NYSCEF Doc Nos. 120 and 142 respectively, Mazzola affirmation, 

exhibits FF and BBB). 

Procedural Posture of the Case 

Plaintiff commenced this case against the Co-op and Brown 

Harris only on July 30, 2018 (NYSCEF Doc. No. 93, Mazzola 

affirmation, exhibit E, Complaint) . The Co-op and Brown Harris 

moved to dismiss the complaint on August 20, 2018 (NYSCEF Doc. No. 

94, Mazzola affirmation, exhibit F) . On December 11, 2018, the 

court dismissed the fourth cause of action for breach of fiduciary 

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duty against the Board1 and the fifth cause of action for negligence 

against Brown Harris and the Co-op (NYSCEF Doc No. 213, Simoni 

affirmation, exhibit I) The court also dismissed the complaint 

against Brown Harris in its entirety (id.). 

On April 15, 2019, the parties filed a stipulation to allow 

Plaintiff to file a supplemental summons and amended complaint, 

adding the Board as a party (NYSCEF Doc No. 58). On April 16, 2019, 

Plaintiff served a supplemental summons and amended complaint, 

asserting almost the same exact causes of action as in her original 

complaint (NYSCEF Doc No. 89, Mazzola affirmation, exhibit A, 

amended complaint). However, Plaintiff added a cause of action for 

breach of the warranty of habitability against the Board as her 

fourth cause of action and a breach of fiduciary duty against the 

Co-op as her fifth cause of action (id.) On May 16, 2019, 

Defendants answered the amended complaint (NYSCEF Doc No. 90, 

Mazzola affirmation, exhibit B). Defendants now move for summary 

judgment. Plaintiff opposes. 

Both parties have submitted affidavits from experts on the 

issue of whether the duration of the Co-op's repair project on the 

2nd Floor Roof Area was reasonable. In support of their motion for 

summary judgment, Defendants submitted an affidavit from Benjamin 

1 Al though the Board was not named as a party in the initial 

complaint, Plaintiff asserted a cause of action against the Board 

in the body of the complaint. 

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M. Cornelius (Cornelius), who is licensed as a professional 

engineer, civil engineer, and structural engineer (NYSCEF Doc No. 

145, Cornelius affidavit). Mr. Cornelius avers that although the 

repairs on the 2nd Floor Roof Area took 33 months to complete, the 

time was reasonable: the project arose out of unforeseen 

conditions, the extent of the damage came to light as the project 

progressed, a contractor needed to be selected for the work, and 

the Co-op had to secure the necessary permits from both the DOB 

and LPC. Additionally, the Building expanded the repair project at 

a time when the construction industry in New York City was busy 

(id., p. 5) Plaintiff submitted a rebuttal affidavit from Douglas 

R. Korves (Korves) , who is a registered architect licensed to 

practice in New York. Mr. Korves attests that the time to complete 

the 2nd Floor Roof Area repair project was unreasonable (NYSCEF 

Doc. No. 179, Korves affidavit, pp. 9-10). Per Mr. Korves, the Coop should have performed an emergency repair of the under slab and 

the 2nd Floor Roof Area, and not couple this repair project with 

other work in the Building because it resulted in an unreasonable 

delay (id.) 

DISCUSSION 

A party moving for summary judgment under CPLR § 3212 "must 

make a prima facie showing of entitlement to judgment as a matter 

of law, tendering sufficient evidence to demonstrate the absence 

of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 

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320, 324 [1986]) The "facts must be viewed in the light most 

favorable to the non-moving party" (Vega v Restani Constr. Corp., 

18 NY3d 499, 503 [2012] [internal quotation marks and citation 

omitted]). Once the moving party has met this prima facie burden, 

the burden shifts to the non-moving party to furnish evidence in 

admissible form sufficient to raise a material issue of fact 

(Alvarez, 68 NY2d at 324). The moving party's "[f]ailure to make 

such prima facie showing requires a denial of the motion, 

regardless of the sufficiency of the opposing papers" (id.) 

A. Standing 

As a preliminary matter, Defendants argue, for the first time, 

that Plaintiff lacks standing to bring this lawsuit because the 

2nd Floor Roof Area is not part of the demised premises. Pursuant 

to CPLR § 3211 (e), the failure to raise the defense of standing 

in an answer or in a pre-answer motion to dismiss constitutes a 

waiver of the defense (Eida v Bd. of Mgrs. of 135 Condominium, 166 

AD3d 561, 561 [1st Dept 2018]; Dougherty v City of Rye, 63 NY2d 

989, 991 [1984]). Nonetheless, "a waiver may be retracted 'by 

assertion of the defense in connection with the summary 

judgment .... an unpleaded defense may not only be invoked to defeat 

a motion for summary judgment, but in the absence of surprise or 

prejudice to, or objection by, the opposing party, it may also 

serve as the basis for an affirmative grant of such relief'" 

(Nikita Banks v Peace of Mind Realty, 2019 NY Slip Op 32689[U],* 

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*13-14 [Sup Ct, NY County 2019] [citations omitted]; see also 

Sullivan v American Airlines, Inc., 80 AD3d 600, 602 [2d Dept 2011] 

["an unpleaded defense may serve as the basis for granting summary 

judgment in the absence of surprise or prejudice to the opposing 

party"]; BMX Worldwide v Coppola N.Y.C., Inc., 287 AD2d 383, 384 

[1st Dept 2001]). "[P]rejudice or surprise is ameliorated however, 

when it is shown that the plaintiff has had a full and fair 

opportunity to respond and oppose the defense being asserted in 

connection with summary judgment" (Antwi v HVT, Inc., 24 Misc 3d 

1250 [A], 2009 NY Slip Op 51937 [U], *11 [Sup Ct, Bronx 2009] 

[citations omitted]). 

Here, Defendants failed to raise the defense of standing in 

their answer and their motion to dismiss, therefore waiving it 

(see NYSCEF Doc. No. 90, answer to amended complaint; NYSCEF Doc. 

No. 210, Simoni affirmation in opposition to instant motion, 

exhibit F) . Defendants thus waived the affirmative defense of 

standing but retracted their waiver by asserting it for the first 

time in their motion for summary judgment. As Plaintiff fully 

opposed the issue, both parties having an opportunity to address 

such defense in their papers, the court finds that Plaintiff is 

not prejudiced by the court's consideration of the issue. In any 

event, Defendants' affirmative defense of standing fails because 

defendants have not prima facie established that the 2nd Floor Roof 

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Area is not part of Plaintiff's demised premises, as discussed 

infra. 

Turning to the issue on whether the 2nd Floor Roof Area is a 

part of the demised premises, "[a] lease agreement, like any other 

contract, essentially involves a bargained-for exchange between 

the parties" (Rowe v Great Atl. & Pac. Tea Co. r 4 6 NY2d 62, 67 

[ 1978 J) "It is the proprietary lease which creates a landlordtenant relationship between the shareholder and the cooperative 

corporation" (Blumenfeld v Stable 49, Ltd., 62 Misc 3d 1208 [A], 

2018 NY Slip Op 51958[U], *23-24 [Sup Ct, NY County 2018] 

[citations omitted]) . "The relationship between the 

shareholder/lessees of a cooperative corporation and the 

corporation is determined by the certificate of incorporation, the 

corporation's bylaws and the proprietary lease" ( Fe Bland v Two 

Trees Mgt. Co., 66 NY2d 556, 563 [1985]). Thus, ordinary contract 

principles apply in interpreting those documents (see Kralik v 239 

E. 79th St. Owners Corp., 5 NY3d 54, 57 [2005]; see also George 

Backer Mgt. Corp. v Acme Quilting Co., 46 NY2d 211, 217 

[1978] [stating in pertinent part that "a lease is subject to the 

rules of construction applicable to any other agreement"]). Courts 

have previously held that the offering plan and the lease determine 

the extent of tenant's rights to the roof ( see Fairmont Tenants 

Corp. v Bratt, 162 AD3d 442 [1st Dept 2018]; 1050 Fifth Ave. v 

May, 247 AD2d 243, 243-244 [1st Dept 1998]) 

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"In cases of contract interpretation, it is well settled that 

'when parties set down their agreement in a clear, complete 

document, their writing should . be enforced according to its 

terms'" (South Rd. Assoc., LLC v International Bus. Machs. Corp., 

4 NY3d 272, 277 [2005] [citations omitted]). "'The best evidence 

of what parties to a written agreement intend is what they say in 

writing'" ( see Greenfield v Philles Records, 98 NY2d 5 62, 5 69 

[2002] [citations omitted]). If the terms of a contract, however, 

are "susceptible of two reasonable interpretations," then the 

contract is deemed ambiguous (Ellington v EMI Music, Inc., 24 NY3d 

239, 244 [2014] [internal quotation marks and citation omitted]). 

Applying the law to the facts at bar, there is an issue of 

fact as to whether the 2nd Floor Roof Area is part of Plaintiff's 

demised premises. The proprietary lease describes the Apartment 

as "all that certain space on the second floor of the building, 

known as Apartment 2-B, and herein referred as the apartment" 

(NYSCEF Doc No. 92, p. 3) The proprietary lease, however, does 

not describe what "all that certain space" encompasses or describe 

the number of rooms or other areas that the Apartment contains. 

The language is thus "sufficiently ambiguous to permit the 

introduction of extrinsic evidence to discern the parties' intent 

as to whether the [P]laintiff has the exclusive right to use" the 

2nd Floor Roof Area (Koretz v 363 E. 76th St. Corp., 178 AD3d 445, 

446 [1st Dept 2019]). 

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To give the "proprietary lease meaning," the court may review 

the Co-op's offering plan submitted by Defendants (Fairmont 

Tenants Corp, 162 AD3d at 442; see also 1050 Fifth Ave., 247 AD2d 

at 243) There is no ambiguity in the Co-op' s offering plan 

(NYSCEF Doc. No. 97, Plan of Cooperative Organization dated 

September 8, 19 64) that there is no "terrace" or "balcony" 

allocated to Plaintiff's Apartment. Specifically, Schedule C of 

the offering plan shows only the penthouse has a terrace as denoted 

by "Ter" next to its description (NYSCEF Doc No. 97, p. 34) . 

According to the offering plan submitted, the 2nd Floor Roof Area 

is not allocated to the Apartment (see Fairmont Tenants Corp, 162 

AD3d at 442). 

Plaintiff, however, argues that there is no evidence that the 

offering plan submitted by Defendants is valid or that it was filed 

with the New York State Attorney General's Office as required by 

13 NYCRR 17.4 (e). 

In response, Defendants argue that the "ancient document 

rule" applies, making the document self-authenticating. However, 

looking at the document itself, it is not clear to the court, from 

the first page or the content, that the copy of the offering plan 

that was submitted was filed and approved by the Attorney General. 

Mr. Mazzola's affirmation only identifies the exhibit as the "Coop' s Offering Plan" without providing any further description 

(NYSCEF Doc No. 88, Mazzola affirmation, p. 14). 

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Notwithstanding Defendants' argument, the court is unable to 

apply the ancient document rule here. "Under the 'ancient 

document' rule, a record or document which is found to be more 

than 30 years old, and which is proven to have come from proper 

custody and is itself free from any indication of fraud or 

invalidity, 'proves itself'" (Tillman v Lincoln Warehouse Corp., 

72 AD2d 40, 44 [1st Dept 1979] [citations omitted]). "If the 

genuineness of an ancient document is established, it may be 

received to prove the truth of the facts that it recites" (id. at 

45). However, the genuineness of the document has not been 

established, as Defendants failed to submit an affidavit from 

someone with personal knowledge to authenticate the Co-op's 

offering plan as a business record or provide other proof of 

custody (Dodge V Gallatin, 130 NY 117, 133-134 [1891]; 

Thistlethwaite v Thistlethwaite, 200 Misc 64, 66 [Sup Ct, Monroe 

County 1950]). Accordingly, Defendants have failed to demonstrate 

that the 2nd Floor Roof Area is not part of the demised premises, 

and therefore Defendants do not prevail on their lack of standing 

defense. 

B. Breach of Contract Against the Co-Op 

In her first cause of action, Plaintiff alleges a breach of 

contract against the Co-op. Plaintiff's main allegation is that 

the Co-op breached its obligation toward her by performing 

construction work on the 2nd Floor Roof Area in a "harassingly slow 

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manner," preventing her from using it for an unreasonably long 

period of time (NYSCEF Doc. No. 89, Amended Complaint, at p. 4). 

Defendants argue that Plaintiff cannot demonstrate a breach of the 

terms of the proprietary lease even if the 2nd Floor Roof Area were 

part of the demised premises. 

To prevail on a cause of action for breach of contract, a 

plaintiff must prove: (1) the existence of a contract, (2) 

plaintiff's performance thereunder, ( 3) the defendant's breach, 

and ( 4) resulting damages (Harris v Seward Park Hous. Corp., 7 9 

AD3d 425, 426 [1st Dept 2010]). 

There is no dispute that a proprietary lease agreement for 

the Apartment exists between Plaintiff and the Co-op. In her 

Amended Complaint, Plaintiff identifies numerous provisions in the 

proprietary lease to show the Co-op's obligations to make repairs 

for which she alleges there was a breach. Under the provisions 

(lease, Article I, section 1) , as cited by Plaintiff, the Co-op 

"shall keep in good repair" "terraces," "public halls," and "fire 

escapes" The Co-op must, under section two of Article I, 2 also 

"maintain and manage the building as first-class apartment 

building and shall keep the elevators and the public halls . 

. clean." Under Article II, section 12, of the lease, the Co-op is 

2 Although Plaintiff cites the second section of "Article II" in 

her Amended Complaint, this quoted provision is in fact located 

under Article I. 

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also to "restore the apartment to its proper and usual condition", 

after making repairs. 

Plaintiff alleges that she meets the second element of breach 

of contract because she has paid the Co-op for the 535 shares 

allocated to the Apartment and has performed all her obligations 

under the proprietary lease. She argues that she has established 

the third element of the cause of action as well because the Coop breached the provisions of the proprietary lease that she 

identified, in undertaking repairs on the 2nd Floor Roof Area in a 

"harassingly slow matter," precluding her from using the area for 

an unreasonably long time. 

Plaintiff's breach of contract claim fails even assuming that 

the 2nd Floor Roof Area were part of Plaintiff's demised premises. 

First, the provisions cited by Plaintiff in her Amended Complaint 

essentially state that the Co-op is responsible for, among other 

things, maintaining terraces in good repair. The evidence in the 

record show that the Co-op met that obligation by undertaking 

repairs that were required under the agreement; made repairs on 

the 2nd Floor Roof Area/"terrace" after it discovered that there 

were significant cracks and damage to the 2nd Floor Roof Area and 

the commercial space below; and thoroughly investigated and 

executed the repairs in consultation with the licensed engineers 

and architects. 

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Plaintiff admits that the Co-op made repairs as obligated by 

the proprietary lease once the damage on the 2nd Floor Roof Area 

was discovered. Nonetheless, Plaintiff challenges the time in 

which the repairs were made and argues that the Co-op violated the 

proprietary lease by "not timely engaging in the repairs and then 

elongating the repair process and not returning the pavers to the 

Terrace until October 13, 2020 . "and by failing to "promptly 

restore as mandated by the Lease." However, in support of this 

argument, Plaintiff fails to cite to any provisions under the 

proprietary lease that required the Co-op to carry out the repairs 

within a specific time. Not one of the provisions cited by 

Plaintiff in her Amended Complaint set a "reasonable" time in which 

repairs must be completed. In fact, the proprietary lease does 

not set any such standards. Plaintiff's cause of action for breach 

of contract merely amounts to a disagreement about the amount of 

time in which the Co-op made the repairs, not a breach of contract. 

Although the parties have submitted evidence from experts who 

disagree on whether the construction project on the 2nd Floor Roof 

Area took an unreasonably long time, this evidence is irrelevant 

as terms of the proprietary lease contains no provisions concerning 

the reasonableness of the time for repairs. In fact, under the 

lease, Plaintiff's right to use the "terrace" would be subject to 

the Co-op's repair and maintenance responsibilities. Moreover, the 

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lease terms explicitly absolve the Co-op from any liability for 

the inconvenience or discomfort arising from the repairs. 

Finally, Plaintiff alleges that the Co-op breached the 

proprietary lease because it violated the New York City Housing 

Maintenance Code (HMC), including HMC § 27-2009.2, by failing to 

maintain the Building and failing to post the Safe Construction 

Bill of Rights. This argument does not prevail because Plaintiff 

lacks standing to enforce such violations under the Housing 

Maintenance Code. Under controlling case law, when the DOB issues 

notices of violations "against the Co-op, plaintiff [] [is] under 

no obligation to respond to them," and a private litigant, 

"lack[s] standing to enforce the DOB's order to correct the 

violation" (Wachtel v Park Ave & 84th St., Inc., 180 AD3d 545, 546 

[1st Dept 2020] [citations omitted]). Additionally, the HMC § 27-

2009.2 (g) explicitly states that the provisions of the section 

are to be "enforced by the department or department of buildings." 

Consequently, only the New York City Department of Housing 

Preservation and the Department of Buildings can enforce the Coop's violations of the Housing Maintenance Code (see also Delgado 

v New York City Hous. Auth., 66 AD3d 607, 608 [1st Dept 2009] 

["Only the Commissioner of the New York City Department of Housing 

Preservation and Development is authorized to seek such relief or 

other sanctions and remedies for violations of the Housing 

Maintenance Code (NY City Charter§ 1802 [1]"]). 

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C. The Covenant of Quiet Enjoyment against the Co-op 

In her second cause of action, Plaintiff alleges a breach of 

the covenant of quiet enjoyment against the Co-op (NYSCEF Doc. No. 

89, Amended Complaint, at p. 5). She alleges that the Co-op 

unreasonably performed repair work on the 2nd Floor Roof Area 

precluding her from its use and ousting her from her own "terrace" 

(id.). Defendants argue that there was no ouster because the 

repairs were made with Plaintiff's consent (NYSCEF Doc No. 147, 

Defendants' Memorandum of Law, p. 14). 

"To make out a prima facie case of breach of the covenant of 

quiet enjoyment, a tenant must establish that the landlord's 

conduct substantially and materially deprived the tenant of the 

beneficial use and enjoyment of the premises" (Jackson v 

Westminster House Owners Inc., 24 AD3d 249, 250 [1st Dept 2005]). 

"There must be an actual ouster, either total or partial, or if 

the eviction is constructive, there must have been an abandonment 

of the premises by the tenant" (id.). 

Assuming the 2nd Floor Roof Area is a part of the demised 

premises, the Co-op's repairs of the space do not amount to an 

eviction. First, there was no constructive eviction because there 

is no evidence that Plaintiff abandoned the demised premises. 

However, Plaintiff argues that she was ousted from the 2nd Floor 

Roof Area due to the repairs made by the Co-op. "[A]lterations to 

the leased premises, made with the consent of the tenant, do not 

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amount to an eviction, no matter how extensive or the degree of 

interference with the tenant's occupancy" (Jackson, id.) The Coop' s entry to the 2nd Floor Roof Area was made pursuant to the 

right the Co-op reserved in the proprietary lease, which was signed 

and consented by Plaintiff. For these reasons, Plaintiff's second 

cause of action is dismissed. 

D. The Breach of Warranty of Habitability Against the Co-op 

and the Board of Directors 

For her third and fourth causes of action of breach of the 

warranty of habitability against the Co-op and the Board, 

respectively, Plaintiff alleges that Defendants failed to maintain 

the Co-op in good repair as required by Real Property Law§ 235-

b. She alleges that Defendants failed to timely cure the 

conditions and thus prevented her from using the 2nd Floor Roof 

Area, as well as compromised the fire egress through the 2nd Floor 

Roof Area for a long period of time (NYSCEF Doc No. 89 at pp. 3, 

6-7). Defendants argue that the loss of an amenity like a terrace 

is not a breach of warranty. 

part: 

Section 235-b of the Real Property Law, provides in pertinent 

"In every written or oral lease or rental agreement for 

residential premises the landlord or lessor shall be deemed 

to covenant and warrant that the premises so leased or rented 

and all areas used in connection therewith in common with 

other tenants or residents are fit for human habitation and 

for the uses reasonably intended by the parties and that the 

occupants of such premises shall not be subjected to any 

conditions which would be dangerous, hazardous or detrimental 

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to their life, health or safety. When any such condition has 

been caused by the misconduct of the tenant or lessee or 

persons under his direction or control, it shall not 

constitute a breach of such covenants and warranties." 

Further, Real Property Law§ 235-b applies to proprietary leases 

(see Matter of 12-14 E. 64th Owners Corp. v Hixon, 130 AD3d 425, 

425 [1st Dept 2015]). Additionally, under the Multiple Dwelling 

Law, and HMC § 27-005, the Co-op is required to maintain the 

premises in good repair. 

Nonetheless, "[t]he landlord is no absolute insurer of 

services which do not affect habitability nor is it a guarantor of 

'every amenity customarily rendered in the landlord-tenant 

relationship'" (Suarez v Rivercross Tenants' Corp., 107 Misc 2d 

135, 139 [App Term, 1st Dept 1981], quoting Park W. Mgt. Corp. v 

Mitchell, 47 NY2d 316, 327 [1979]). "[T]he implied warranty 

protects only against conditions that materially affect the health 

and safety of tenants or deficiencies that 'in the eyes of a 

reasonable person ... deprive the tenant of those essential functions 

which a residence is expected to provide'" (Solow v Wellner, 86 

NY2d 582, 588 [1995] [citation omitted]). 

As a preliminary matter, Plaintiff's breach of warranty of 

habitability claim against the Board fails because "section 235-b 

only applies to the parties to the lease" (Adler v Ogden CAP 

Props., LLC, 42 Misc 3d 613, 622 [Sup Ct, NY County 2013], affd 

126 AD3d 544 [1st Dept 2015]) Since the Board is not a party to 

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the proprietary lease, the fourth cause of action is dismissed 

against such defendant. 

Assuming the 2nd Floor Roof Area were part of the leased 

premises, the Co-op did not breach the implied warranty of 

habitability. While the Co-op is responsible for maintaining the 

Building in good repair, there are no allegations by Plaintiff 

that the Apartment was uninhabitable or that it did not serve the 

essential function that it was expected to serve. Instead, 

Plaintiff's claim involves the uninhabitable condition of the 2nd 

Floor Roof Area while it was under repair. "[A] terrace that is 

safe and suitable for plaintiff's own exclusive, outdoor use is an 

amenity, not an essential function that the co-op must provide" 

(Musey v 425 E. 86 Apts. Corp., 154 AD3d 401, 405 [1st Dept 2017]). 

Thus, even if the 2nd Floor Roof Area were part of the demised 

premises as a terrace, it would constitute an amenity and it would 

not be an essential function of the Apartment that the Co-op must 

provide. 

There is also no evidence that the conditions caused by the 

repairs were dangerous, hazardous or detrimental to Plaintiff's 

life, heal th or safety. The evidence preponderates that the 

conditions on the 2nd Floor Roof Area for which Plaintiff is suing 

were a direct result of necessary repairs undertaken by the Co-op 

to fulfill its obligations pursuant to the proprietary lease and 

to eliminate any hazardous conditions that the damage imposed. 

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These conditions thus "d[o] not fall within the purview of a breach 

of the warranty of habitability, especially where said renovations 

will inure to the benefit of the respondent-shareholders by 

protecting their investments in a properly maintained building" 

(315-321 E. Parkway Dev. Fund Corp. v Wint-Howell, 9 Misc 3d 644, 

648 [Civ Ct, Kings County 2005]). Further, the evidence in the 

record shows that, for her safety, Plaintiff was informed to not 

use the 2nd Floor Roof Area while it was being repaired, and when 

water accumulated, the Co-op ordered the contractor to remedy the 

issue (NYSCEF Doc No. 120 [e-mail dated August 6, 2018 from 

plaintiff to Derlaga] and 142 [e-mail dated August 7, 2018 from 

Derlaga to contractor], respectively). 

As to Plaintiff's claim related to the fire egress located on 

the 2nd Floor Roof Area, she "individually lacks standing to 

maintain claims based on purported fire and building code 

violations in the common areas of the building (involving access 

to the fire escape/roof area of the building, and inspection of 

the building's sprinkler system [. [ s] ince such claims 

involve injury to the corporation, they can only be asserted 

derivatively on behalf of the corporation" (White v Gilbert, 2012 

NY Slip Op 32042[U], *23-24 [Sup Ct, NY County 2012]) Here, the 

evidence submitted shows that the DOB issued the Co-op a violation 

for failing to provide unobstructed exit passageway and directed 

it to correct the issue (NYSCEF Doc No. 174, affidavit of 

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plaintiff, exhibit 24). Notwithstanding the dispute on whether 

the 2nd Floor Roof Area is part of Plaintiff's demised premises, 

there is no dispute that the fire egress is a common area of the 

Building that other shareholders may access in case of a fire. 

Such a claim is thus derivative and Plaintiff lacks standing to 

maintain it individually based on a purported fire and a building 

code violation. 

Although Plaintiff cites the decision of the Appellate Term, 

First Department, in Israel Realty LLC v Shkolnikov, for the 

proposition that Defendants breached the warranty of habitability, 

the facts of such case is distinguishable from those at bar. In 

Israel Realty LLC v Shkolnikov, 59 Misc 3d 148[A], 2018 NY Slip Op 

50812[U] [App Term, 1st Dept 2018]), the appeals panel held that 

there was a breach of habitability because the tenant was unable 

to use the patio area that was nearly twice the size of the interior 

apartment, and thus an essential function that the residence was 

expected to provide (id. at *2) Further, the scaffolding work in 

Israel Realty LLC affected the air, light and ventilation inside 

the apartment posing potential threats to the health and safety of 

the tenant (id. at *2). Plaintiff has submitted no evidence that 

such infiltration occurred in the instant case. 

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For all the foregoing reasons, Defendants' motion to dismiss 

Plaintiff's third and fourth causes of action is granted. 3 

F. The Sixth Cause of Action for Negligence Against the 

Co-op 4 

For her sixth cause of action, Plaintiff alleges that the Coop had a duty to maintain the Building (including the 2nd Floor 

Roof Area) and to undertake repairs promptly and lawfully, which 

they allegedly failed to do (NYSCEF Doc No. 89 at p. 8). Plaintiff 

contends that such failure caused her to lose the opportunity to 

sell the unit and the construction project damaged her property, 

such as her plants and planters. Defendants argue, among other 

things, that the claim is duplicative of her breach of contract 

claim. 

To prevail in a negligence claim, a plaintiff must demonstrate 

"(1) the existence of a duty on defendant's part as to plaintiff; 

(2) a breach of this duty; and (3) injury to the plaintiff as a 

result thereof" (Akins v Glens Falls City School Dist., 53 NY2d 

325, 333 [1981]) When a negligence claim "[i]s fundamentally no 

3 In her fifth cause of action, Plaintiff alleges a breach of 

fiduciary duty against the Co-op on the basis that the Co-op 

ignored her requests to timely cure the conditions on the 2nd Floor 

Roof Area precluding her from its use (NYSCEF Doc No. 89 at p. 7). 

The court already dismissed Plaintiff's breach of fiduciary duty 

against the Co-op when it decided Defendants' motion to dismiss 

(NYSCEF Doc No. 50, Court's Decision and Order). 

4 As stated supra, this court previously dismissed all the claims 

against Brown Harris. Consequently, the court will only address 

the sixth cause of action in relation to the Co-op. 

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more than a breach of contract claim, and, absent the allegations 

of a duty owed by defendant independent of the contract (the 

proprietary lease), a valid cause of action is not stated" (Wapnick 

v Seven Park Ave. Corp., 240 AD2d 245, 247 [1st Dept 1997]; see 

also Baker v 16 Sutton Place Apt. Corp., 2 AD3d 119, 121 [1st Dept 

2003]). Further, courts have held that "there is no cause of action 

for 'negligent performance of [a] contract' (Wapnickr 240 AD2d at 

247) 

Here, Plaintiff's alleges that the Co-op negligently made 

repairs on the 2nd Floor Roof Area. Assuming the 2nd Floor Roof 

Area is part of the leased premises, Plaintiff's negligence claim 

is based on the same factual allegations as those on her breach of 

contract claim. As the Co-op's duty to Plaintiff to make repairs 

arises solely under the proprietary lease and seeks the same 

damages, the claim is duplicative and barred by her claim for 

breach of the proprietary lease. 

G. The Seventh Cause of Action for Negligence Against the 

Board 

For her seventh cause of action, Plaintiff alleges that the 

Board was negligent because it did not undertake prompt repairs in 

the Building, including the repair work on the 2nd Floor Roof Area 

(NYSCEF Doc No. 89 at p. 8). She argues that such failure caused 

her to lose her opportunity to sell the unit and the construction 

project damaged her property. Defendants move to dismiss this 

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cause of action on the same basis as their challenge to the sixth 

cause of action. 

Defendants' motion to dismiss Plaintiff's seventh cause of 

action is granted. The business judgment rule is the legal 

standard that applies in reviewing the Board's decisions made 

within their authority, as "business judgment must rest with the 

corporate directors" (Matter of Levandusky v One Fifth Ave. Apt. 

Corp., 75 NY2d 530, 539 [1990] [ internal quotation marks and 

citations omitted]; see also 40 W. 67th St. v Pullman, 100 NY2d 

147, 149-150 [2003] ["the business judgment rule is the proper 

standard for judicial review when evaluating decisions made by 

residential cooperative cooperations"]). 

"[T]he business judgment rule prohibits judicial inquiry into 

actions of corporate directors 'taken in good faith and in 

the exercise of honest judgment in the lawful and legitimate 

furtherance of corporate purposes.' So long as the 

corporation's directors have not breached their fiduciary 

obligation to the corporation, 'the exercise of [their 

powers] for the common and general interests of the 

corporation may not be questioned, although the results show 

that what they did was unwise or inexpedient.'" 

(Matter of Levandusky, 75 NY2d at 537-538 [citations omitted]). 

Here, the evidence shows that the Co-op's actions through the 

Board's decisions concerning the repair project on the 2nd Floor 

Roof Area were in accordance with the provisions in the proprietary 

lease and the Co-op' s bylaws. The actions taken were a proper 

exercise of the Board's business judgment because it is within the 

discretionary power of the Board to prescribe "the manner of 

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maintaining and operating the building and what services and 

attendants are proper" (NYSCEF Doc. No. 92, p. 4-5; see also NYSCEF 

Doc No. 91, p. 7). The evidence before this court establishes that 

the building-wide renovation project was conducted after damage 

was found to exist on the 2 nd Floor Roof Area and the commercial 

space below. The record at bar further shows that the repairs 

made were necessary because the concrete slab damage was serious 

and presented potential danger to not only Plaintiff, who was using 

the 2nd Floor Roof Area, but also to anyone in the retail space 

below. Nor is there is any dispute that the project was approved 

by the Board pursuant to the Co-op's bylaws, and the repairs thus 

made to benefit the collective interest of the shareholders, 

including Plaintiff. 

There is no evidence in the record to indicate, nor does 

Plaintiff argue, that the Board's decisions were not in furtherance 

of the common and general interest of the corporation or that they 

were made in bad faith. Instead, the evidence shows that the 

repairs made to the 2nd Floor Roof Area, the commercial space below, 

and the roof of the Building were necessary, thoroughly 

investigated and recommended by GMS or RKA. The multiple reports 

generated by GMS and RKA demonstrate the seriousness of the damage, 

the challenges that the Co-op faced in making such repairs, and 

the steps it took to ensure that the repairs were being carried 

out. "So long as the board acts for the purpose of the cooperative, 

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within the scope of its authority and in good faith, courts will 

not substitute their judgment for the board's" (Matter of 

Levandusky, supra, 75 NY2d at 538). 

Plaintiff does not dispute that the Board had the discretion 

to decide how to undertake repairs. Instead, Plaintiff argues 

that on their motion, under Matter of Levandusky, defendants bear 

the burden of establishing, as a matter of law and fact, that in 

undertaking and executing the repairs, the Board acted reasonably. 

The court disagrees with plaintiff's interpretation, in that the 

Court of Appeals in the Matter of Levandusky held that, although 

the "reasonableness standard has much in common with the [business 

judgment standard it] adopt[ed]", the business judgment standard 

is "preferable" because ( 1) rather than requiring the board to 

demonstrate that its decision was reasonable, the business 

judgment standard requires the shareholder to demonstrate breach 

of the board's fiduciary duty, and (2) the business judgment 

standard does not require the court to evaluate the merits or 

wisdom of the Board's decision, and instead gives deference to the 

Board's business judgment (Matter of Levandusky, at 539). Contrary 

to Plaintiff's arguments, the business judgment standard, not the 

reasonableness test, governs the Board's decision, and the 

Levandusky court reasoned that "the prospect that each board 

decision may be subjected to full judicial review hampers the 

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effectiveness of the board's managing authority" (id. at 540; see 

also 40 W. 67th St. Corp., 100 NY2d at 150) 

The evidence thus shows that the Board acted within the scope 

of its authority, in good faith, and for the purpose of the 

cooperative when it made the repairs in the Building. 

evidence is not rebutted by the Plaintiff . 

This 

3/12/2024 

DATE 

CHECK ONE: 

APPLICATION: 

CHECK IF APPROPRIATE: 

CASE DISPOSED 

GRANTED □ DENIED 

SETTLE ORDER 

INCLUDES TRANSFER/REASSIGN 

20240312181021DJAMESDE1FA39CA1A64035960C8F9A32CCFDA6 

.v-~ fl - } ~ 

DEBRA A. JAMES, J.S.C. 

~ NON-FINAL DISPOSITION 

GRANTED IN PART 

SUBMIT ORDER 

FIDUCIARY APPOINTMENT 

□ OTHER 

□ REFERENCE 

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