Brady v 450 W. 31st Owners Corp.

Brady v 450 W. 31st Owners Corp. 2010 NY Slip Op 01060 [70 AD3d 469] February 11, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 31, 2010

James Brady et al., Appellants,
v
450 West 31st Owners Corp., Respondent, et al., Defendants.

—[*1] Louis A. Badolato, Roslyn Harbor, for appellants. Kaufman Friedman Plotnicki & Grun, LLP, New York (Stanley M. Kaufman of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Marcy S. Friedman, J.), entered March 26, 2009, to the extent appealed from as limited by the briefs, declaring that defendant 450 West 31st Owners Corp. is the owner of the transferable development rights granted or permitted to the parcel of land on which the cooperatively owned building is located, and that paragraph 7 of the second amendment to the offering plan does not convey or reserve those rights to plaintiffs, and that plaintiffs have the right to construct or extend structures upon the roof or above the same to the extent that may from time to time be permitted under applicable law, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered July 7, 2008, which, inter alia, granted defendants' motions for summary judgment dismissing the complaint, unanimously dismissed as academic, without costs.

Paragraph 7 of the second amendment to the offering plan contains no express language giving plaintiffs ownership of or veto power over the building's development rights or air rights (compare Jumax Assoc. v 350 Cabrini Owners Corp., 46 AD3d 407, 408 [2007] ["roof rights reserved for (plaintiff) in the 1986 offering plan"]). It reserves for plaintiffs the right, as [*2]permitted by the relevant laws, to construct or extend structures on the roof that may be built without the use of the building's development rights. Concur—Mazzarelli, J.P., Acosta, Renwick and Freedman, JJ. [Prior Case History: 2009 NY Slip Op 30599(U).]