COMMUNITY ASSOCIATION SEMINAR
CASE LAW UPDATE
Significant Legal Decisions of 2019/2020
For Board members of Long Island
Condominiums, Co-ops and
Homeowners Associations
1. REMOVAL OF BOARD MEMBERS
Rosario v. Shorehaven Homeowners Assn. – Supreme Court, Bronx County
Plaintiff resigned from the Board due to a dispute she had with the rest of the Board regarding
the budget. After resigning Plaintiff made a demand via a petition signed by 40% of the
Community members and delivered to the secretary demanding that the board hold a special
meeting to remove all the current board members and elect nine new members. The Board
rejected the petition on the grounds it was in violation of the Declaration and By-Laws of the
HOA.
Plaintiff brought suit seeking the court to remove the entire board, order a new election and
enjoin the Board members from taking any further actions until after the special election.
Despite the rules allowing removal of a Board member, with or without cause by a majority vote
of Members present in person or by proxy at a regular or special meeting, the Court found that
there was no provision in the governing documents for removal of the entire board and an
election to replace at a special meeting and denied the Plaintiff relief as requested. The Court
also found that there were no exigent circumstances requiring a special election when the annual
election for the whole Board was just a couple of months away.
Takeaway – By-Laws don’t necessarily provide the answers to all questions.
2. ACCESS TO NEIGHBORING UNIT FOR REPAIRS OR IMPROVEMENTS
Voron v. Board of Managers of the Newswalk Condominium – Supreme Court, Kings County
Petitioner unit owner desired to install an additional bathroom in their condominium unit. They
requested and were granted permission from the Board, managing agent and City however when
a part of the renovation required them to access certain pipes within an adjoining upstairs
neighbors unit the neighbor refused to grant them permission. Petitioner brought suit against the
neighboring unit owner, Board and managing agent claiming the By-Laws and/or New York
State Real Property Law permitted them access and that the Board was required to compel the
neighbor to comply with the request.
The Board claimed they only have the right to compel owners in matters that the Board controls
such as repairs to common areas and that they would not and should not involve themselves in
neighbor to neighbor disputes, however the Board did request the neighbor to comply. The
defendant unit owner/neighbor claimed that they only had to provide access to the managing
agent or the Board, not any neighbors.
The court found that New York State Real Property Law provides a mechanism and a right for
adjoining property owners to gain access to a neighboring property for the purpose of
improvements or repairs and this right applies to all “Real Property” including Condominium
Units.
Takeaway – There’s a law for that.
3. ODORS, LEAKS, NOISES AND THE BOARD’S RESPONSIBILITY TO ADDRESS
Abrams v. Board of Managers of 25 Beekman Place Condominium – Supreme Court, New York
County
Soon after purchasing the Penthouse, Petitioners experienced excessive and unreasonable noises
and vibrations along with offensive cooking odors and water leaks from the roof all creating a
nuisance that prohibited them from being able to enjoy residing in the Unit. Plaintiffs argued the
Board was negligent in the care and responsibility to maintain the building which caused these
nuisances and as result the Board breached their fiduciary duties. The Board argued that they
were not obligated to fix the damage caused by the complained of leaks, nor were they
responsible for the acts of third parties causing a nuisance. The Court found there was sufficient
evidence that the noises, odors, leaks and overall nuisances the Plaintiff was experiencing was
caused by the acts or omissions of the Board and that the Plaintiff may indeed have a right to
hold the Board responsible.
Takeaway – Ongoing failure to address infrastructure needs may lead to bigger headaches.
4. PERSONAL LIABILITY OF A BOARD MEMBER
Rhodes v. Swope – Supreme Court, Warren County
Pursuant to approved plans by the local Park Agency, the board hired a contractor to remove and
trim certain trees on HOA property in order to create a “filtered view” of Lake George. Upon
removal of Plaintiff’s tree, a tree not included in the plans, Plaintiff brought suit against the
Board and also against a Board member in their personal capacity claiming that the removal of
the tree reduced the value of their property and significantly damaged their property interest.
Plaintiff further sought to hold the individual Board member personally liable for her
independent misconduct and participation in the malfeasance of the HOA with regard to
misrepresentation, waste and destruction allegedly practiced by the HOA.
The Court dismissed all causes of action against the individual Board member finding that
notwithstanding Plaintiff’s accusations that the Board member acted without authorization by
trespassing onto their property via the contracting agent, breached her fiduciary duty by having
the tree removed and committed a tortious act by requiring the removal of the tree, the Plaintiff
failed to establish with actual and factual allegations that she acted outside of her official duties
as a Board member which is required in order to hold her personally liable.
Takeaway – Board members don’t have to worry about personal liability as long as the Board is
acting in good faith.
5. DISCRIMINATION AND BOARD INTERVENTION
Rayantha Favourite v. 55 Halley Street, Inc. – United States District Court, S.D. New York
Plaintiff, a person of Guyanese descent, purchased a cooperative apartment from the Sponsor.
The later purchaser of the apartment below files approximately 48 complaints with the Board
regarding Plaintiff’s loud parties, playing loud music from her car while parked in the parking lot
and marijuana smoking in her apartment. Plaintiff complained that the downstairs resident
banged on her floor. A two-day surveillance of plaintiff by police detectives did not disclose any
illegal behavior. The board encouraged the two shareholders to mediate the dispute. The parties
were able to resolve the issues, a mediation agreement was signed and all was calm.
Approximately five years later, the downstairs resident is on the Board and a year later, the
allegations against Plaintiff of noise, parties and marijuana return. The complaints are mostly
from the downstairs resident but several other shareholders also file noise complaints against
Plaintiff. The co-op Board sends letters threatening lease termination and also suggests again
that the parties should mediate the dispute. Plaintiff eventually sues the Board, claiming
discrimination and a violation of the federal Fair Housing Act.
The Court found that there was never any mention of race in the long history of the dispute until
the lawsuit was filed, that other persons of color resided in the building without problems, and
Plaintiff failed to offer any evidence that the Board’s actions were racially based.
The Court also noted the Board’s efforts to resolve the dispute via mediation and that there
appeared to be a rational race neutral basis for complaining about Plaintiff’s behavior. Thus, the
Court dismissed the action.
Bottom line – Do not ignore neighbor to neighbor disputes.
6. ELECTION PROCEDURES
Frankel v. Board of Mgrs. Of the Cent. Park W. Condominium – Supreme Court, Appellate
Division, First Department
Plaintiff brought this action claiming the By-Law election procedures were not followed, no
quorum was established and the results of the election were not valid. Plaintiff also claimed that
the Board was self-dealing by providing themselves parking spaces at a very low rate and at the
expense of the rest of the Community who were not provided parking.
The Defendant Board claimed to have conclusive evidence to refute the invalid election claims,
that they are acting within the rules with regard to the parking spaces and Plaintiffs claims should
be dismissed.
The Court held that the business judgment rule which provides if a board is acting within the
scope of its authority and the action taken is in good faith to further a legitimate interest was
applicable in the instant case. The By-laws provided the board the right to rent the parking
spaces and to set the fee for the rental. Plaintiff failed to proved any evidence outside of
allegations to support their claims that the Board was self dealing or acting in any way outside of
their scope of authority.
The Court however declined to dismiss the complaints regarding the improper election
allegations. The Court found that the documentary evidence the Board provided was comprised
of ballots that were redacted for name, unit number and date and the way the Board calculated
the quorum was improper and not pursuant to the By-Laws. The Board also failed to show
proper proof that a voice vote was proper or supportive of a quorum.
Takeaway – Don’t tamper with the evidence.
7. BOARD INTERFERENCE WITH THE SALE OF A UNIT
Liberty on Warren LLC – Appellate Division, First Department
In this case, the owner of a condominium unit brought an action against the Board after a
prospective purchaser cancelled the contract of sale.
The owner alleged that the Board illegally sought to restrict the use of a unit, causing the buyer
to cancel the contract.
The court held that the Board merely pointed out to the purchaser that governing documents
prohibited the unit from being used for the buyer’s intended use, a rehearsal studio.
Takeaway – Interfering in a contract can be troublesome unless with good cause.
8. RESTRICTING RENTALS VIA THE HOUSE RULES
Robert Laker v. Association of Property Owners of Sleepy Hollow Lake, Inc. – Appellate
Division, Third Department
The Board initially adopted house rules requiring owners to obtain a permit from the
Association, pay a fee and set fines for violation of same. Years later, the Board amended these
rules to bar short term rentals and to increase the permit and fine fees.
When the Plaintiffs protested, the Board agreed to delay implementation in order to come to an
agreement with the owners in opposition. When it was clear the parties would not agree,
Plaintiff brought a declaratory action to ask the Court to find the rental rules to be invalid.
The Board argued that they are protected by the four month statute of limitations for challenges
to the act of an administrative body and the business judgment rule, which bars judicial inquiry
into actions of directors taken in good faith and exercised with honest judgment and in the
legitimate furtherance of the Community.
The Court found that the statute of limitations was tolled and would not begin to run until the
Board made it clear the new rules would become effective. The Court also found that the
business judgment rules would not protect the Board when the decisions were not allowed under
the rules. The rules allowed leasing without restriction and so without a formal amendment the
Board was prohibited from enacting contrary rules.
Takeaway – Using the house rules to restrict rentals and fine for rule violations is not always
legitimate.
9. Unrecorded Amendments to the By-Laws
Keller v. Kay – Appellate Division, Second Department
The Homeowners Association Board, proposed various amendments to the By-Laws, including
elimination of cumulative voting, rules for voting via a proxy and the length of the time available
for nominations on election day. These amendments were approved by 66 2/3 of the Community
as required under the Declaration, however the Board failed to record the amendments with the
Suffolk County Clerk.
The Plaintiff, a member of the Board commenced an action against the members of the Board
challenging the validity of the amendments and requested that the Court enjoin the Board from
enforcing the amendments and from conducting the annual election, claiming the amendments
were not properly authorized because they were unrecorded.
The Court found that although the By-Laws do not specifically state they need to be recorded to
be effective, the By-Laws are a part of the Declaration which itself specifically requires any
amendment to be properly recorded to be effective. Despite the Court finding that amendments
to the By-Laws must be recorded to be effective, they denied the Plaintiff an injunction stopping
the Board from enforcing the amendments or holding the election because the Plaintiff failed to
prove the failure to record caused irreparable harm and specifically pointed out that the
complaining Plaintiff actually participated in the process of approving the amendments and she
further failed to prove that but for the unrecorded amendments she would have won in the
election she found to be at fault.
Takeaway – Recording of amendments erases all question as to whether the Community is on
notice of the Rules.
10. Eviction of Shareholder, Mental Health/Disability Concerns
140 W. End Ave. Owners Corp. v Dinah L. – Civil Court, New York, Housing Part
In this landlord-tenant action, the Board, as permitted pursuant to the proprietary lease and by-
laws, terminated the proprietary lease of Dinah L., the 72-year-old shareholder tenant who
occupied the unit for more than ten years, and commenced a holdover proceeding contending
that Ms. L created a nuisance condition in her apartment in violation of the proprietary lease.
Specifically, it was alleged that she kept her apartment in poor condition by amassing clutter in
the form of garbage, books, and newspapers, which resulted in infestation, unreasonable odors,
and an increased risk of fire hazard, thereby interfering with other building residents' use and
enjoyment of their homes. The eviction proceeding, which lasted for more than two years, set off
several hearings and appointments, namely bringing to surface Ms. L’s functional limitations that
impair her ability to provide for her personal needs and property management, and that the
appointment of a guardian is necessary to care for Ms. L and her finances. Although the
cooperative Board was awarded a warrant of eviction and judgment of possession, the warrant
was stayed for 90 days while the guardian worked towards cleaning the unit further and placing
it on the market.
Despite that the Board met its prima facie burden in establishing the existence of a nuisance and
was granted a judgment of possession and issuance of a warrant of eviction, the court, in its
discretion, stayed the warrant since equity would not be served with the immediate execution of
a warrant of eviction. That is, Ms. L. would likely suffer extreme hardship if a stay were not
granted. Ms. L was entitled to a stay allowing the guardian additional time to have Ms. L
relocated and the apartment sold or to show that Ms. L has learned to properly care for herself
and the apartment in light of Ms. L’s disability and cooperation. The court also, in its discretion,
held that no deposit of funds into the court representing use and occupancy was required.
Takeaway –Though difficult to deal with, mental health issues may be resolved by a court
although not to the complete satisfaction of the Board.
11. ACCOMMODATION FOR DISABILITY
Matter of Delkap Mgt., Inc. v. New York State Div. of Human Rights – Court of Appeals
Owner of a co-op apartment acquired a dog despite the co-op’s no dog policy. The owner
submitted a request to the Board for an accommodation due to a disability. The Board
previously had provided the owner with a parking space close due her unit due to her disability.
However, the Board denied the owner’s request for an accommodation regarding the dog and
fined her $740 for the violation.
Owner filed a complaint with the NYS Division of Human Rights (DHR). The Board revokes
her parking privileges, threatens eviction, and after a hearing before an administrative law judge,
the Board claims the judge ruled in its favor. Owner moves out of the co-op. The judge then
rules that the Board had discriminated against the owner, that the owner had a right to keep the
dog, and that the Board had retaliated against the owner for filing a complaint. Penalties and
damages are awarded in the amount of no less than $25,000.
The co-op Board appeals the decision, and the appellate court overturns the decision, finding that
the owner failed to present sufficient evidence that the dog was necessary for her to enjoy the
apartment.
The owner appeals to the Court of Appeals. The Court, in a split (5-2) decision, reverses the
appellate court and reinstates the DHR ruling.
Takeaway – Opposing a disability discrimination claim is no simple matter.
12. DISPUTE BETWEEN OWNERS AND BOARD OVER REPAIRS MADE BY
NEIGHBOR
ESX Services v. Board of Managers of the Essex House Condominium– Supreme Court, New
York (2019).
Corporate plaintiff (ESX) purchased and combined 2 separate condo units in the Essex House
overlooking Central Park, and leased the new space to residential tenants. A few years later, the
Defendant (160 CPS) purchased and combined the 2 separate units directly below plaintiff’s unit.
A year later, 160 CPS (owner of lower Unit) sought Board consent to demolish and replace an
existing greenhouse located on the balcony (Restricted Common Element) because it was
“cracked, leaking and falling apart”, and provided detailed plans and designs of the proposed
work, utilizing the exact same footprint, which application was unanimously approved by the
Board.
160 CPS replaced the greenhouse as planned, but six months later, Plaintiff (upper Unit)
suddenly asserted that the new greenhouse was over a foot taller than the old one, and now
blocked Plaintiff’s views of Central Park, thereby diminishing the value of Plaintiff’s Unit by
$415,000.
A year after the greenhouse was replaced, Plaintiff sued the Board, the property manager and the
owner of the new greenhouse below, for improperly building a structure that blocks their views,
for failing to obtain the upstairs Unit Owner’s consent to the work, and seeking a permanent
injunction requiring the demolition and replacement of the new greenhouse with one identical in
size to the old one.
All three parties thereafter moved for summary judgment. The Court subsequently determined
(3 years later) that the Board’s actions were protected by the express provisions of the Condo’s
governing documents, as well as the business judgment rule, and dismissed the case against the
Board.
The Defendant Unit Owner (160 CPS) submitted numerous affidavits, the architectural plans,
photographs of the work (before during and after), and depositions testimony to show that the old
greenhouse was, in fact, confined to old footprint and identical to the old one in every way
except for the “shape or slope of the roof.” 160 CPS referred to the upstairs Owner as “an out-
of-possession owner who has never resided in the apartment”, asserted that if the views were
impacted, it was de minimus, and that the Plaintiff had no right to a view of Central Park absent a
written agreement.
The Court found that the evidence overwhelmingly supported the position of CPS 160, holding
that the owner of the greenhouse did not need the Plaintiff’s consent to replace the greenhouse,
and due to Plaintiff’s failure to provide any significant evidence in support of its claim that the
new greenhouse was actually taller than the old one, dismissed Plaintiff’s complaint.
Takeaway – Be cognizant of the need to maintain meaningful records, and to abide by the
mandates and procedures of the governing documents.
