Gordon v Board of Mgrs. of the 18 E. 12th St. Condominium
Annotate this CaseDecided on June 29, 2012
Supreme Court, New York County
Anthony J. Gordon, Plaintiff,
against
Board of Managers of the 18 East 12th Street Condominium, KEY REAL ESTATE ASSOCIATES, LLC, and MAXWELL KATES BROKERAGE INC., Defendants.
107817/2011
Plaintiff represented by: Rosenberg & Estis, 733 Third Avenue, New York, NY 10007,
tel: 212-867-6000, by Jason R. Davidson, Esq. and Alexander Lycoyannis, Esq.
Respondent/Defendant represented by: Bates & Baer, 60 East 42nd Street, Suite 1800, New York, NY 10165, tel: 212-227-1735, by Christian Sedereas, Esq.
Shlomo S. Hagler, J.
Plaintiff Anthony J. Gordon ("Gordon" or "plaintiff") moves for an order pursuant to CPLR § 3212, granting him partial summary judgment as to liability on his first and second causes of action in the amended complaint. Defendants Board of Managers of the 18 East 12th Street Condominium, Key Real Estate Associates, LLC, and Maxwell Kates Brokerage Inc. ("Board," "Key," and "Maxwell" or "defendants") oppose the motion.
Background
Plaintiff is the owner of a duplex condominium unit 9/10C located at 18 East 12th Street, New York, New York on portions of the ninth and tenth floors ("subject premises" or "apartment"). The subject premises contain a skylight which is situated directly above an internal staircase leading from the ninth floor to the tenth floor and the landing on the tenth floor ("skylight"). The skylight is a component of the building's roof and is affixed to a cut-out portion of the tenth floor ceiling in the subject premises.
On or about June 9, 2010, plaintiff discovered that water leaked into his apartment from the edges of the skylight. On the same date, plaintiff notified John Cummings ("Cummings") of Key, the managing agent of the Board, of the leak and requested immediate repair of the same. On or about June 14 and 15, 2010, Gordon also left telephone messages for Cummings as a follow-up to his earlier request. Inasmuch as neither Cummings nor any representative of the Board allegedly [*2]responded to his request, Gordon's counsel provided additional written notice to defendants of the leak by letter dated June 15, 2010. (See Exhibit "D" to the motion.) On or about June 21, 2010, plaintiff's counsel sent a second letter to Cummings notifying the Board that the leak had caused personal property damage and such damage would continue to accrue until the leak was repaired. (See Exhibit "E" to the motion.) Again, neither Cummings nor any representative of the Board of Managers allegedly responded.
In or about July, 2010, plaintiff advised Cummings that he no longer could wait for the Board to repair the leak, and that in order to prevent further damages to his personal property and the subject premises, he would cause the necessary repairs to be made to the skylight and roof himself. In response, defendants' counsel wrote a letter to plaintiff's counsel dated July 21, 2010, requesting that plaintiff "refrain from attempting to have the [weatherproofing] work done on his own" because "the Board is causing the Weatherproofing Work to be performed and . . . is committed to getting the Weatherproofing Work done correctly and as expediently as possible." (See Exhibit "F" to the motion.) In reliance on the Board's representations, Gordon refrained from repairing the skylight.
Nonetheless, the Board failed to repair the skylight and roof and the water continued to leak into the subject premises for several months despite plaintiff's continued request for repairs. (See Exhibit "G" to the motion.) Instead of performing the repairs as promised, the Board draped a tarp over the skylight as a temporary solution. For many months, plaintiff and his counsel continuously requested that the Board permanently repair the skylight and roof to halt the water infiltration into the subject premises. (See Exhibits "H," "I" and "J" to the motion.) By letter dated October 18, 2010, defendants' counsel finally responded denying the allegations that the Board unduly delayed the repair of the skylight and once again assured plaintiff that "the Board has authorized its professionals to replace the roof." (See Exhibit "K" to the motion.)
After more than a year of unfulfilled promises and unabated water infiltration, plaintiff's counsel wrote a letter dated June 17, 2011 to defendants' counsel informing the Board that plaintiff incurred "significant damages" as a result of the Board's failure to make the necessary repairs and Gordon would be commencing a lawsuit to remedy the intolerable situation. (See Exhibit "L" to the motion.) Plaintiff then commenced this action in July, 2011. By letter dated August 16, 2011, plaintiff's counsel advised the Board that as a result of torrential rains, the opening in the skylight expanded by fifty percent, and caused additional damage to the subject premises. (See Exhibit "M" to the motion.) Plaintiff amended his complaint to add a cause of action seeking a permanent injunction compelling the Board to permanently repair the skylight pursuant to the Condominium's By-Laws ("By-Laws"). (See Exhibit "A" to the motion.) Defendants later interposed a verified answer to the amended verified complaint. (See Exhibit "B" to the motion.)
Summary Judgment
The movant under CPLR § 3212 has the initial burden of proving entitlement to summary judgment. (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985].) Once such proof has been offered, in order to defend the summary judgment motion, the opposing party must "show facts sufficient to require a trial of any issue of fact." (CPLR § 3212[b]; Zuckerman v City of New York, 49 NY2d 557 [1980]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065 [1979]; Freedman v Chemical Construction Corp., 43 NY2d 260 [1977]; Spearmon v Times Square Stores Corp., 96 AD2d 552 [2d Dept 1983].) "It is incumbent upon a [litigant] who opposes a motion for summary [*3]judgment to assemble, lay bare and reveal [his, her, or its] proof, in order to show that the matters set up in [the] answer are real and are capable of being established upon a trial." Spearmon, 96 AD2d at 553 (quoting Di Sabato v Soffes, 9 AD2d 297, 301 [1st Dept 1959].) If the opposing party fails to submit evidentiary facts to controvert the facts set forth in the movant's papers, the movant's facts may be deemed admitted and summary judgment granted since no triable issue of fact exists. (Kuehne & Nagel, Inc. v F.W. Baiden, 36 NY2d 539 [1975].)
Furthermore, an affidavit or affirmation by an attorney who does not have personal knowledge of the facts is insufficient in support or opposition to the motion as it lacks probative value. (Wehringer v Helmsley Spear, 91 AD2d 585 [1st Dept 1982] affirmed 59 NY2d 688 [1983].)
Board's Duty to Repair Roof and Skylight Pursuant to By-Laws
It is quite clear that the Board is required pursuant to the By-Laws to make all repairs to the common elements of the subject building. Article III, Section 6 of the By-Laws provides, in pertinent part, as follows:
All maintenance, repairs and replacement of the common elements of the property including but not limited to . . . portions of the exterior walls, roof and roof members . . . shall be made by the Board of Managers and the cost thereof shall be a common expense. (Emphasis added.)
(See Exhibit "C" to the motion.) The skylight is indisputably part of the roof and thus constitutes a common element that the Board is required to repair pursuant to the By-Laws. (See Exhibit "P" to the motion, Excerpts of January 20, 2012 transcript deposition of Jared Zolna, at pp. 51-52.) It is also admitted that the Board took responsibility to repair the skylight and roof to halt the water infiltration or leaks into the plaintiff's apartment. (See Exhibit "O" to the motion, Excerpts of January 5, 2012 transcript deposition of John Cummings, at p. 52.)
In the first cause of action, plaintiff seeks a permanent injunction compelling the Board to undertake all work necessary to permanently repair the skylight to prevent leaks and future damage to his property and the apartment. At oral argument, plaintiff's counsel averred that defendants have finally repaired the roof and skylight and abated the leaks into the subject premises. To the extent that defendants have not permanently completed the above weatherproofing work, it is uncontroverted that the Board has an obligation to do so to prevent future water infiltration into plaintiff's apartment.
Board is Liable for Failure to Repair Skylight and Resulting Leaks
In his second cause of action, plaintiff alleges that despite repeated notice of the water infiltration set forth above, the Board failed to repair the skylight and the resulting leaks for more than a year. As a result thereof, plaintiff incurred significant damages to his personal property and the apartment.
Plaintiff now moves for partial summary judgment as to liability on his second cause of action. In opposition thereto, defendants argue that summary judgment is premature as there is still outstanding discovery which it requires to oppose the instant motion. (See CPLR § 3212[f]; Global Minerals and Metal Corp. v Holme, 35 AD2d 93 (1st Dept 2006].) Specifically, defendants demanded records of a prior renovation and the alteration agreement for the subject premises.
Gordon testified at his deposition that certain devices such as a burglar alarm, the "crash [*4]detection" and fire alarms installed on the wall below the skylight and on the ceiling near the skylight were among the property that was damaged due to the leakage from the skylight. (See Exhibit "B" to the opposition papers, January 5, 2012 transcript deposition of plaintiff, at pp. 61-63.) Cummings testified that he believed plaintiff had renovated the subject premises between 2007 and 2009 (see Exhibit "C" to the opposition papers, January 5, 2012 transcript deposition of John Cummings, at p. 59) and without any supporting affidavit, defendants make a leap of faith to imply that plaintiff's renovations between 2007 and 2009 somehow caused the leak to occur in June, 2010, at least one year later.
Even assuming arguendo that plaintiff's apartment renovations somehow contributed to or caused the leakage from the skylight, the Board explicitly told Gordon to "refrain from attempting to have the [weatherproofing] work done on his own" because "the Board is causing the Waterproofing Work to be performed . . . and is committed to getting the weatherproofing work done correctly and as expediently as possible." (See Exhibit "F" to the motion.) In reliance on the Board's representations, Gordon refrained from repairing the skylight which allegedly caused the "significant damages" to his apartment. Plaintiff did not ignore the situation and continued to notify the defendants and request that the repairs be made quickly so as to prevent further damage to the subject premises. (See Exhibits "G," "H," "I" and "J" to the motion.) Furthermore, defendants fail to even address their own undue delay in repairing the roof and skylight more than a year after the first reported leak from the skylight. In sum, defendants arguments are speculative and not supported by the record herein.
Conclusion
Accordingly, this Court grants plaintiff's motion to the extent of granting partial summary judgment in favor of plaintiff and against defendant Board of Managers of the 18 East 12th Street Condominium as to liability on the first and second causes of action of the amended complaint dated August 24, 2011.
The foregoing constitutes the decision and order of the Court. Courtesy copies of this decision and order have been sent to counsel for the parties.
Dated:June 29, 2012___________________________
New York, New YorkHon. Shlomo S. Hagler, J. S. C.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
