Great Jones Studios Inc. v Wells

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Great Jones Studios Inc. v Wells 2019 NY Slip Op 31585(U) May 31, 2019 Supreme Court, New York County Docket Number: 653104/2015 Judge: Shlomo S. Hagler 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. [* 1] INDEX NO. 653104/2015 NYSCEF DOC. NO. 312 RECEIVED NYSCEF: 06/04/2019 SUPREME OURT OF THE STATE OF NEW YORK COUNTY 0 NEW YORK: I.A.S. PART 17 ---------------- -------------------------------------------------------------x GREAT J NES STUDIOS INC., DECISION AND ORDER Plaintiff, Index No. 653104/2015 - against HERBERT WELLS and VERA WELLS, Defendants. ---------------- -------------------------------------------------------------x HON. SHL MO S. HAGLER, J.S.C.: This ispute concerns the use of the roof at 55 Great Jones Street, New York, New York (the "Buildin ") by defendants Herbert Wells ("Wells") and his wife, Vera Wells (together, "defendants") In Motion Sequence No. 005, defendants move pursuant to CPLR 3212, for summary jud ment dismissing the complaint, for summary judgment on their first, second and third counter laims, and for their costs and expenses, including attorneys' fees. In Motion Sequence No 006, plaintiff moves, pursuant to CPLR 3212, for summary judgment on the complaint an for dismissal of defendants' counterclaims, and for its costs and expenses, including attorneys' fee . Motion Sequence Nos. 005 and 006 are consolidated for disposition herein. BACKGROUND In De ember 1979, Wells purchased the seven-story commercial loft Building and converted it i to a cooperative with six full-floor residential units and a ground floor commercial unit and base ent (NY St Cts Electronic Filing ["NYSCEF"] Doc No. 158, Peter Goodman ["Goodman"] aff, Exhibit "A" at 7 and 41). Wells served as the sponsor and the selling agent on the conversio (id. at 1). Plaintiff cooperative corporation is the present owner of the Building. The o ering plan (the "Offering Plan") states, in relevant part, that "Unit #7 is offered with easement of xclusive use of substantial portions of the roof, exclusive of elevator bulkhead, 2 of 32 [* 2] INDEX NO. 653104/2015 NYSCEF DOC. NO. 312 RECEIVED NYSCEF: 06/04/2019 chimney, fl e outlets, and other spaces which are reserved for maintenance. This exclusive easement sp ce is estimated at about 700 square feet" 1 (NYSCEF Doc No. 158 at 7). The roof was accessi le via a common interior staircase (id. at 67), and a gooseneck ladder at the rear fire escape (id. structures - t 65). The architectural drawings in the Offering Plan depicted only two rooftop staircase/elevator bulkhead and a wood gravity water tank housed in a brick and metal enclos re or bulkhead (id. at 66 and 83). The total area of the roof is approximately 2,400 to 2,500 squ re feet (NYSCEF Doc No. 1, complaint~ 12; NYSCEF Doc No. 155, affirmation of Christopher umulty ["Tumulty"], Exhibit "D" [Wells tr] at 44). The ffering Plan provided for the sale of 16 shares in the cooperative (NYSCEF Doc No. 158 at 33), ith maintenance set at $287 a month for each share (id. at 11). With regards to possible ch ges in the price per share, the Offering Plan partially states: "The Sponsor reserves the right, with respect to any unit for which a Purchaser Agreement has not been executed, or for which a Purchase Agreement is in default, in order to meet possibly varying demands for sizes and types of units, or to meet particular requirements of prospective purchasers, or for any other reason, to change the number of units per floor by increasing or decreasing their size, or to change the size, layout and location ... " (id. at 10). I there were any unsold shares on the closing date of the Offering Plan, the sponsor would produ e "a financially responsible individual person or persons ... (hereinafter referred to as 'Holder o Unsold Shares') to whom all of the unsold shares will be issued and who will enter into propriet y leases for the units to which such shares are allocated" (id. at 33). The holder of unsold share could "elect to become the occupant of the unit covered by his proprietary lease, 1 The Offerin Plan defendants submitted with their motion (NYSCEF Doc No. 183, Wells affirmation, Exhibit "C") v ries slightly from the document plaintiff submitted (NYSCEF Doc No. 158). Defendants' exhibit contai s a chart setting forth the square footage, purchase price and shares allocated to each unit (NYSCEF Do No. 183 at 7). Plaintiffs version omits the page marked "4B" and contains an extra page with two floor Jans (NYSCEF Doc No. 158 at 84). The page number totals for both documents differ from the 82-page 0 ering Plan filed with the complaint (NYSCEF Doc No. 2). 2 3 of 32 [* 3] INDEX NO. 653104/2015 NYSCEF DOC. NO. 312 RECEIVED NYSCEF: 06/04/2019 and, from th time that he becomes the occupant thereof, the Sponsor shall no longer be responsible [sic] for the erformance of his proprietary lease" (id.). dants represent that after Wells failed to sell Unit #7 (the "Unit"), which was the floor-throug loft on the Building's uppermost floor, he took ownership of the three shares allocated to hat Unit (NYSCEF Doc No. 180, Wells affirmation, ,-i 5). On March 16, 1981, Wells entered into proprietary lease (the "Lease") for the Unit (NYSCEF Doc No. 160, Goodman aff, Exhibit "C" t 3), as the holder of unsold shares (NYSCEF Doc No. 180, ,-i 5). The Lease defines the "apartm nt" as "the rooms in the building as partitioned on the date of the execution of this lease design ted 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, whic are allocated exclusively to the occupant of the apartment" (NYSCEF Doc No. 160 at 3). The ease also provides in paragraph 7, titled "Penthouses, Terraces and Balconies," as follows: "7. If the apartment includes a terrace, balcony, or a* portion of the roof adjoining a penthouse, the Lessee shall have and enjoy the exclusive use of the terrace or balcony or that portion of the roof appurtenant to the penthouse, subject to the applicable provisions of this lease and to the use of the terrace, balcony, or roof by the Lessor to the extent herein permitted. The lessee's use thereof shall be subject to such regulations as may, from time to time, be prescribed by the Directors. The Lessor shall have the right to erect equipment on the roof, including radio and television aerials and antennas, for its use and for the use of the lessees in the building and shall have the right of access thereto for such installations and for the repair thereof. The Lessee shall keep the terrace, balcony, or portion of the roof appurtenant to his apartment clean and free from snow, ice, leaves and other debris and shall maintain all screens and drain boxes in good condition. No planting, fences, structures or lattices shall be erected or installed on the terraces, balconies, or roof of the building without the prior written approval of the Lessor. No cooking shall be permitted on any terraces, balconies or the roof of the building, nor shall the walls thereof be painted by the Lessee without the prior written approval of the Lessor. Any planting or other structures erected by the Lessee or his predecessor in interest may be removed and restored by the Lessor at the expense of the 3 4 of 32 [* 4] INDEX NO. 653104/2015 NYSCEF DOC. NO. 312 RECEIVED NYSCEF: 06/04/2019 Lessee for the purpose of repairs, upkeep or maintenance of the building" (NYSCEF oc No. 160 at 7). Typed beneath the preprinted language is the sentence, "*7th floor tenant has e elusive use of roof area" (id.). Rule 29 of plaintiffs house rules (the "House Rules"), which were incorporated into the Lease (NYSCEF Doc No. 160 at 8-9), states that "No Lessee shall install ny plantings on any terrace, balcony or roof without the prior written approval of the Lessor" (N SCEF Doc No. 161, Goodman aff, Exhibit "C" at 4). A breach of a House Rule constitutes a default under the Lease (NYSCEF Doc No. 160 at 9). As fi r alterations, paragraph 21 of the Lease states, in pertinent part: "21. (a) The Lessee shall not without first obtaining the written consent of the lessor, which consent shall not be unreasonably withheld, make in the apartment or building, or on any roof,* penthouse, terrace or balcony appurtenant thereto, any alteration, enclosure or addition or any alteration of or addition to the water, gas or steam risers or pipes, heating or air conditioning system or units, electrical conduits, writing or outlets, plumbing fixtures, intercommunication or alarm system, or any other installation or facility in the apartment or building. The performance by Lessee of any work in the apartment shall be in accordance with any applicable rules and regulations of the Lessor and governmental agencies having jurisdiction thereof. The Lessee shall not in any case install any appliances which will overload the existing wires or equipment in the building. (b) Without Lessor's written consent, the Lessee shall not remove any fixtures, appliances, additions or improvements from the apartment except as hereinafter provided ... " (NYSCEF D c No. 160 at 14-15). Inserted beneath the preprinted language are the following typed senten es: "*Each 7th floor tenant shall have an easement with exclusive use of substantial portions of the roof, exclusive of elevator bulkhead, chimney, flue outlets, and other spaces which are reserved for maintenance. The 7th floor tenant shall be responsible for any damage to the roof area over which he has exclusive use. The cooperative corporation will be responsible only for normal maintenance and repairs" (id. at 14). 4 5 of 32 [* 5] INDEX NO. 653104/2015 NYSCEF DOC. NO. 312 RECEIVED NYSCEF: 06/04/2019 Bet een 1981 and 1984, Wells undertook several alterations to the Unit. He installed a spiral stairc se through the water tank bulkhead to provide direct access to the roof and five SCEF Doc No. 180, ~ 5). At that time, the water tank was no longer in use (NYSCEF Doc No. 15 , Tumulty affirmation, Exhibit "E" at 2). Wells demolished the northwest-facing metal walls and doorway of the water tank bulkhead, attached a greenhouse extension to the bulkhead, a d covered the extension with a plywood roof (NYSCEF Doc No. 155 at 71 and 73). He built an -foot by 16-foot wood deck in front of the greenhouse (id. at 148-149). He tarred the brick walls f the water tank bulkhead and the elevator bulkhead, applied sealant to the camel back tiles at the p rapets, and patched the roof as needed (NYSCEF Doc No. 156 at 2-3). and his wife moved into the Unit in 1984 (NYSCEF Doc No. 180, ~ 6; NYSCEF at 92), after which they undertook additional work. 2 In 1988, Wells built a second 12-foot by 1 -foot elevated wood deck from the greenhouse to the staircase bulkhead; the deck sat on top offoo ings cut into the roof for support (NYSCEF Doc No. 155 at 150-151). Wells testified that he appli d cement or rubberized roofing material over several missing or cracked camelback tiles (id. at 112-113). Between 2001 and 2002, Wells removed the original camelback tiles and replaced the with poured concrete capstones (id at 117-119). Wells explained that he built five- foot long wo d planter boxes and bolted them to the top of the new capstones (id. at 120 and 122), and set up a ater irrigation system across each planter (id. at 124 and 163). He drilled weep holes on the roof ide for excess water runoff (id. at 122-123). Wells testified that he removed the greenhouse a d replaced it with a wood-framed, wood- and glass-enclosed penthouse (id. at 131, 57). Between 2001 and 2003, Wells outfitted the disused water tank bulkhead with a kitchen, ba room, and electricity (NYSCEF Doc No. 156 at 3). After removing the two wood 2 At his depos tion, Wells was unable to recall the specific dates when he performed the work, although defendants ad it the work took place between 1984 and 2009 (NYSCEF Doc No. 156 at 2-3). 5 6 of 32 [* 6] INDEX NO. 653104/2015 NYSCEF DOC. NO. 312 RECEIVED NYSCEF: 06/04/2019 decks in 20 2 so that a contractor could lay down a new torch down roof (NYSCEF Doc No. 155 at 165), We ls built a new, elevated wood deck supported on screw jack footings in 2009 (id. at 152). He in talled a push-bar alarm on the door at the common stairway/elevator bulkhead that disabled with his key (id. at 180). Well also testified that a metal company repairing the rear fire escape in the early 1980s had remove the gooseneck fire escape ladder because of rust (NYSCEF Doc No. 155 at 192). Wells furth testified that due to break-ins at the Building, "two or three of us looked at the situation, w were bothered by the situation, and said we should remove it" (id., lines 14-16). Wells believ d that the first-floor and second-floor tenants at that time were involved in making the determin tion to remove the ladder (id. at 192-193). Well testified repeatedly that he did not inform, consult with or seek prior written consent from the Bo rd for any of the work that he performed largely on his own, and that he did not sign an alteration agreement (NYSCEF Doc No. 155 at 96, 117-118, 140, 158 and 167). Similarly, he never retain d the services of an architect or engineer (id. at 95, 115, 151 and 157). Wells explained th t he never applied for a building permit from the New York City Department of Buildings(" OB") (id. at 91, 95-96, 161-162, 167, and 209-210), because "it had been the culture or 25 years to just do the work that was required to be done" (id. at 99, lines 20-23), and "[w]e di n't file the work that we did on our own spaces, those spaces that we thought to be our own" (id. at 158, lines 11-13). Wells expressed that he was not aware of the Lease provision alterations must comply with municipal agency laws (id. at 97). Regarding the capstone wo , Wells testified that he "did not do any research with regards to whether it complied with any law , I just used common sense, my common sense" (id. at 121, lines 11-14), even though he considere the capstone work to be a big job (id. at 140). As for the planter boxes, an unnamed architect told Wells that there was no DOB rule against placing a wood planter box on a parapet 6 7 of 32 [* 7] INDEX NO. 653104/2015 NYSCEF DOC. NO. 312 RECEIVED NYSCEF: 06/04/2019 (id. at 206). Wells also relied on an online housing brochure, testifying that "it was legal in New York City t have planters on your window sill in some laws, as long as they were affixed, and so I figured w y not the top of the parapets, if they were well affixed, that was it" (id. at 125, lines 49). Plai tiffs by-laws (the "By-Laws") state that the cooperative shall be governed by a board of directors comprised of at least three but no more than seven shareholders (the "Board") (NYSCEF oc No. 159, Goodman aff, Exhibit "B" at 3). Each share is entitled to one vote (id. at 2). Wells s rved as the secretary or vice president from 1981 to 2016, and Vera Wells served as the treasurer in 1981, 1983 and 1984 (NYSCEF Doc No. 156 at 6). Wells affirmed that between 1981 to 201 , he was the director charged with investigating and dealing with all roof issues and that he "was performing repairs and improvements to the roof, for the benefit of the Coop and as an officer an director of the Coop" (NYSCF Doc No. 180, ,-r 8). Plain iff alleges that it learned of the illegal alterations, which had been completed without prior Board pproval, in 2014 or 2015. By letter dated May 7, 2015, plaintiffs architect Jeffrey Kamen, R.A ("Kamen") informed the Board that an inspection he performed for a report under Local Law 1 (New York City Administrative Code§§ 28-302.1 et seq.) had revealed "a number of conditions which we deemed unsafe and an imminent risk to the public" (NYSCEF Doc No. 168, Goodm aff, Exhibit "K" at 1). Kamen observed water damage from the planters above the rear parapets, separation of the rear wall of the penthouse from the parapet wall, and several unsee red, loose items on the roof (id.). In a letter dated June 15, 2015, a second architect, Robert Stron ("Strong"), wrote that the penthouse, wood deck, planter/capstone work and the conversion o the Building's domestic water system to a pump system required building permits, and that none of the improvements appeared on the plans DOB had approved for the conversion (NYSCEF D c No. 162, Goodman aff, Exhibit "E" at 2). Strong wrote that the wood deck, which 7 8 of 32 [* 8] INDEX NO. 653104/2015 NYSCEF DOC. NO. 312 covered mo RECEIVED NYSCEF: 06/04/2019 than 50% of the roof, was illegal under the governing building codes, and that the condition co ld subject plaintiff to a civil penalty (id.). Because the Building was located within an Ml-5B z ne, the penthouse may be illegal (id.). Strong recommended installing a new fire escape ladd r as required under the Multiple Dwelling Law, a perimeter roof railing as required under the B 'lding Code, and removing the lock on the door to the roof from the common stairway (id. at 1-2). trong also wrote that, due to significant deterioration of the capstones, rain and other moisture, li ly from the plant irrigation system, had caused water to seep into the parapets and destabilize t e mortar at the top of the Building's masonry walls (id. at 2). Defe dants' architect Lester Tour ("Tour") described his observations of the roof in a letter addressed to Wells dated June 9, 2015. Significantly, Tour wrote that, of the alterations, "[w]e agree it is u afe, not to code and is a risk, but we did note that the planters and brick wall appear nd stable" (NYSCEF Doc No. 171, Goodman aff, Exhibit "N" at 1). Tour further wrote that, " a]s also noted, the bolting used to affix the fencing and wood planter boxes allows water infiltr ion and over time will undermine the integrity of the wall and coping stones" (id.). He recomme ded the immediate removal of the "non-fire-rated" flower boxes and fencing, repair of the loose apstones, and installation of new guard rails (id. at 1-3). Tour also recommended noncompliant penthouse structure, repairing a wall separation crack at the water tank bulkhead, an replacing the fire escape as per the Multiple Dwelling Law (id. at 2). With regards to the wood eek, the letter reads, "we agree with all the statements and as part of the remediation of the roof a ea and removal of all noncompliant structures and objects that need to be removed" (id.). The oard subsequently adopted 12 resolutions requiring defendants to repair the roof and to execute a alteration agreement (NYSCEF Doc No. 172, Goodman aff, Exhibit "O" at 1-2). 8 9 of 32 [* 9] INDEX NO. 653104/2015 NYSCEF DOC. NO. 312 RECEIVED NYSCEF: 06/04/2019 After defen ants failed to act, plaintiff issued a notice of default dated August 26, 2015 (NYSCEF Doc No. 17 , Goodman aff, Exhibit "P" at 1). Plai tiff commenced this action by filing a summons and complaint on September 14, 2015. The c mplaint asserts four causes of action for breach of contract and private nuisance and seeks injun ive relief and a declaratory judgment. Plaintiff alleges that the alterations have Building's masonry walls by compromising their structural integrity. In addition to asserting fiv affirmative defenses, defendants interposed five counterclaims for a declaratory judgment, br ach of contract and breach of the covenant of quiet enjoyment. Subs quent inspections after plaintiff brought this action have revealed significant water damage to t e roof and the parapets. Strong observed cracked capstones, rusted steel rods at the parapets and deteriorated base flashing at a February 2016 inspection (NYSCEF Doc No. 163, Goodman af , Exhibit "F" at 1). An October 2016 inspection revealed the lack of waterproofing or flashing b tween the capstones and parapet walls, deteriorated or missing flashing, exposed and corroded rei forcing bars in the capstones, loose and delaminated stucco (NYSCEF Doc No. 167, Goodman af Exhibit "J" at 1-2). In October 2017, plaintiffs structural engineer discovered that a rear spandr 1 beam was corroded and buckling (NYSCEF Doc No. 169, Goodman aff, Exhibit "L" at 1), an attributed the cause to the steel bolts that had been used to anchor the planters to the capstones (N SCEF Doc No. 170, Goodman aff, Exhibit "M" at 1). The porous cement capstones allowed mois ure to migrate downward into the parapet walls and onto the spandrel beam, which caused the be m to buckle under sustained loads (id. at 1-2). Plaintiffs contractor also discovered another openi g through the roof (NYSCEF Doc No. 165 at 1). The p rties executed an alteration agreement dated December 17, 2015 (NYSCEF Doc No. 69 at 1). De endants have removed the wood planters and deck, but have undertaken no other corrective wo k (NYSCEF Doc No. 157, Goodman aff, , 14; NYSCEF Doc No. 180, , 17). 9 10 of 32 [* 10] INDEX NO. 653104/2015 NYSCEF DOC. NO. 312 RECEIVED NYSCEF: 06/04/2019 Plaintiff ha retained New Force Construction Corporation to replace and repair the capstones (NYSCEF oc No. 174, Goodman aff, Exhibit "Q" at 1), and Rockledge Scaffold Corp. to furnish a sidewalk shed (NYSCEF Doc No. 175, Goodman aff, Exhibit "R" at 1). Defendants acknowledg that plaintiff has removed the capstones and penthouse and closed the opening to the lkhead (NYSCEF Doc No. 180, ~ 17). DISCUSSION It is ell settled that the movant on a summary judgment motion "must make a prima facie showing of ntitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Wine grad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The motion must be supported by evidence in admissible form (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]), and by the pleadings and other proof such as affidavits, de ositions and written admissions (see CPLR 3212). The "facts must be viewed in the light most fa orable to the non-moving party" (Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012] [inte al quotation marks and citation omitted]). Once the movant meets its burden, it is incumbent u on the non-moving party to establish the existence of material issues of fact (id., citing Alvare v Prospect Hosp., 68 NY2d 320, 324 [1986]). The "[f]ailure to make [a] prima facie showing [of ntitlement to summary judgment] requires a denial of the motion, regardless of the sufficiency o the opposing papers" (Vega, 18 NY3d at 503 [internal quotation marks and citation omitted, emp asis in original]). A. First Ca se of Action for Breach of Contract Plaint ff argues that defendants breached paragraphs 7, 18 (d) and 21 (a) of the Lease and rule 29 of the House Rules by engaging in alteration work without prior written consent from the Board and by completing alterations that violated the 1968 Building Code of the City of New York (Administrati e Code of City of NY)§§ 27-147, 27-334 and 27-338 and Multiple Dwelling Law 10 11 of 32 [* 11] INDEX NO. 653104/2015 NYSCEF DOC. NO. 312 RECEIVED NYSCEF: 06/04/2019 §§ 53 and 2 7. In addition, all exterior surfaces must be watertight (see Rules of the City of NY Dept of Bu ldings [1 RCNY] § 103-04 [b] [3] [iii] [G]), and defendants' work has caused significant ater and structural damage to the Building. Plaintiff seeks to recover its costs under several Leas provisions, including paragraph 28, along with punitive damages. Defe dants assert that plaintiffs claim for breach of contract is barred by the statute of limitations ecause its injuries accrued more than six years before it commenced this action. Defendants rther argue that they cannot have breached the Lease because they are entitled to an easement of xclusive use of the roof. Plai tiff, in reply, contends that defendants' second affirmative defense claiming the action is tim -barred is deficient. To p evail on a cause of action for breach of contract, a plaintiff must prove the existence of a contract plaintiffs performance, defendant's breach, and damages (see Harris v Seward Park Hous. Corp. 79 AD3d 425, 426 [1st Dept 2010]). A breach of contract claim is subject to a six- year limitati ns (see CPLR 213 [2]; ACE Sec. Corp. v DB Structured Prods., Inc., 112 AD3d 522, 522 [1st De 2013], ajfd 25 NY3d 581 [2015]), and the claim accrues "at the time of the breach, e of discovery of the breach" (Yarbro v Wells Fargo, NA., 140 AD3d 668, 668 [1st Dept 2016], iting Ely-Cruikshank Co. v Bank of Montreal, 81 NY2d 399, 402 [1993]). initial matter, defendants have adequately pled a statute of limitations defense. Plaintiff cite Scholastic Inc. v Pace Plumbing Corp. (129 AD3d 75 [1st Dept 2015]) for the proposition t at an affirmative defense must give a plaintiff sufficient "notice of the transaction or occurrence a issue ... [and] notice of the 'material elements' of the defense" (129 AD3d at 85, quoting CPL 3013). There, the defendant asserted a statute of limitations defense with 15 other affirmative d fenses in a single, boilerplate paragraph, even though several of the defenses were not germane to the action (id. at 79). The Court concluded that a plaintiff "ought [not] to be 11 12 of 32 [* 12] INDEX NO. 653104/2015 NYSCEF DOC. NO. 312 RECEIVED NYSCEF: 06/04/2019 required to ift through a boilerplate list of defenses, or 'be compelled to wade through a mass of verbiage an superfluous matter' ... to divine which defenses might apply to the case" (id. [internal cit tion omitted]). In the present action, defendants' second affirmative defense reads, "[u]pon in:fi rmation and belief, the action is barred by the applicable statute of limitations" (NYSCEF oc No. 153, Tumulty affirmation, Exhibit "B" [answer]~ 15). Unlike the boilerplate paragraph r ferenced in Scholastic Inc. (129 AD3d at 85), defendants' statement comports with CPLR 3014 ecause it is a "plain and concise" statement that is "separately stated and numbered." It also gives laintiff sufficient notice of the defense (see CPLR 3013). Thus, it cannot be said that the defense as inadequately pled. Nor have defendants have waived the defense, as plaintiff posits. At a y rate, the proper remedy in the event the defense was inadequately pled would be to allow defen ants to cure the defect and amend their answer (see Scholastic, 129 AD3d at 81). Tum ng to the merits of the defense, it is the defendant who bears the burden of proving that a claim s time-barred (see Trustee of Columbia Univ. in City of NY. v Gwathmey Siegel & Assoc. Archi ects, 167 AD2d 6, 11 [1st Dept 1991]). Although CPLR 213 (2) provides a six-year limitations p riod for breach of contract claims, "[t]he continuous wrong doctrine is an exception to the gener 1 rule" (Henry v Bank of Am., 147 AD3d 599, 601 [1st Dept 2017]), and '"is usually employed w ere there is a series of continuing wrongs and serves to toll the running of a period of limitation to the date of the commission of the last wrongful act'" (id., quoting Selkirk v State of New York 249 AD2d 818, 819 [3d Dept 1998]). "The doctrine 'may only be predicated on continuing u lawful acts and not on the continuing effects of earlier unlawful conduct. The distinction i between a single wrong that has continuing effects and a series of independent, distinct wron s'" (Henry, 147 AD3d at 602, quoting Doukas v Ballard, 39 Misc 3d 1227[A], 2013 NY Slip Op 0776[U], *6 [Sup Ct, Suffolk County 2013], affd 135 AD3d 896 [2d Dept 2016]). Where a de:fi ndant's conduct allegedly violates a contractual obligation to comply with the law, 12 13 of 32 [* 13] INDEX NO. 653104/2015 NYSCEF DOC. NO. 312 RECEIVED NYSCEF: 06/04/2019 then a conti uing wrong may be found (see 1050 Tenants Corp. v Lapidus, 289 AD2d 145, 146 [1st Dept 2 01]). A party's violation of a zoning ordinance is also "a continuing violation oflaw so long as t unlawful operation continues" (Marcus v Village ofMamaroneck, 283 NY 325, 332 [1940]). H nee, application of the continuous wrong doctrine has salvaged a lessor's claim for breach of a proprietary lease against a lessee whose installation and ongoing use of an air conditionin unit may have violated the law (see 1050 Tenants Corp., 289 AD2d at 147), and a sublessee's laim for breach of a lease where the sublessor was contractually obligated to "assure 'code compl ance' with respect to the septic system" (Sta/is v Sugar Cr. Stores, 295 AD2d 939, 941 [4th De t 2002]). Para raph 18 (d) of the subject Lease imposes an ongoing contractual duty upon defendants to comply w th all applicable laws regarding their use and occupancy of the Unit (NYSCEF Doc No. 160 at 3). Alterations must comply with all "governmental agencies having jurisdiction thereof' un er paragraph 21 (a) (NYSCEF Doc No. 3 at 15). Because defendants have not addressed th ir compliance with these two Lease provisions, they have not met their burden of demonstrati that the breach of contract claim is time-barred. an alleged breach, plaintiff maintains that the roof structures were illegal. First, Building Co e § 27-147 requires a written permit for construction and alteration work, but Wells testified repe tedly that he never applied for a permit from or filed any plans with DOB. 3 Building Code § 27-3 4 requires a protective guard, such as parapet, railing, fence or a combination of them, no less than 3 feet, 6 inches high on the flat roof of every building more than 22 feet high. The planters id not qualify as a parapet, railing or fence, and Tour agreed that the planters and fencing were "not to code" (NYSCEF Doc No. 171 at 1). Building Code § 27-338 regulates the 3 This section fthe Building Code has been repealed (see Local Law No. 33 [2007] of City of NY§ 8 [eff July 1, 20 8]). 13 14 of 32 [* 14] INDEX NO. 653104/2015 NYSCEF DOC. NO. 312 RECEIVED NYSCEF: 06/04/2019 type of mat rials used in the construction of roof structures. More specifically, plaintiff argues that, with a Class 1 fireproof building such as the Building (NYSCEF Doc No. 158 at 60), the penthouse alls must be constructed of noncombustible materials under Building Code§ 27-338 (a). Buildin Code § 27-338 G) also states that miscellaneous roof structures, such as a platform, may be cons meted of combustible material if they "do not cover more than twenty per cent of the roof area." ells testified, and the inspections confirmed, that the exterior walls and roof of the penthouse w re built, in part, of combustible wood, that the wood deck covered more than 50% of the roof, and that combustible debris had accumulated underneath the deck. Next Multiple Dwelling Law§ 53 (6) mandates that a "balcony on the top story shall be provided wi h a stairway or a gooseneck ladder from such balcony to and above the roof and securely fast ned thereto." Plaintiff submits that, subject to three exceptions, none of which are applicable, t e removal of the gooseneck ladder constitutes a violation. Multiple Dwelling Law§ 277 states th ta building occupied for loft, commercial or manufacturing purposes before January 1, 1977 may be occupied as joint living-work quarters for artists or general residential purposes provided that "[n]o building converted pursuant to this article shall be enlarged, except where the underlying z ning district permits residential use" (Multiple Dwelling Law§ 277 [7] [d]). Because the Building s located in an Ml-SB zone, floor area must be removed elsewhere in the Building to accommo te the penthouse (NYSCEF Doc No. 162 at 2). Defendants created living space in the penthous even though the certificate of occupancy did not permit rooftop occupancy. Plaint ff has demonstrated that the improvements were not in compliance with Building Code§§ 27-1 7, 27-334 and 27-338 and Multiple Dwelling Law§ 277, and had been completed without prior oard or DOB approval (see 1050 Tenants, 289 AD2d at 146). However, there are issues of fact xist related to the fire escape ladder and the perimeter railing. Wells testified that he had discus ed the issue of removing the ladder with two other shareholders, both of whom 14 15 of 32 [* 15] INDEX NO. 653104/2015 NYSCEF DOC. NO. 312 RECEIVED NYSCEF: 06/04/2019 agreed that t ought to be removed. Wells also affirmed that "the Coop decided to remove the gooseneck re estate ladder from the roof to the seventh floor" and that "[w]e were told by the local fire d partment that the ladder was not required since we were a fireproof building" (NYSCEF oc No. 180, if 10). Although plaintiff offered no evidence in rebuttal, defendants, likewise, of ered no additional evidence in support other than Wells' statements. Whether a statement is '"self-serving' in the sense that it is incredible on its face ... is an issue for the factfinder to resolve" (Lewis v Rutkovsky, 153 AD3d 450, 456 [1st Dept 2017]). Wells also maintained t at the DOB-approved plans from the conversion depicted a rail around the perimeter of the roof, ut "no such railing was ever installed"4 (NYSCEF Doc No. 180, if 7). John Kidd ("Kidd"), th ugh, testified that he visited the roof the day after he purchased the ground floor commercial nit in 1992, and at that time, he saw a railing (NYSCEF Doc No. 237, Kidd tr at 25). These contr ictions raise credibility issues which cannot be resolved on a motion for summary judgment (se Encalada v McCarthy, Chachanover & Rosado, LLP, 160 AD3d 475, 476 [1st Dept 2018]). Whil defendants did not address the legality of the improvements, they contend that Wells, as the spons r and as the holder of unsold shares, could take any action he wished related to the roof. Defen ants rely on two clauses in the Offering Plan and plaintiffs by-laws ("By-Laws"). The Offering Plan reserves to the sponsor: "[t]he right, with respect to any unit for which a Purchaser Agreement has not been executed, or for which a Purchase Agreement is in default, in order to meet possibly varying demands for sizes and types of units, or to meet particular requirements of prospective purchasers, or for any other reason, to change the number of units per floor by increasing or decreasing their size, or to change the size, layout and location; but, such Sponsor, shall not have the right to reallot the total shares allocated to any of the floors offered for sale under said Plan" Incidentally the task of installing the perimeter railing fell to the sponsor (NYSCEF Doc No 158 at 28). 4 15 16 of 32 [* 16] INDEX NO. 653104/2015 NYSCEF DOC. NO. 312 (NYSCEF RECEIVED NYSCEF: 06/04/2019 oc No. 158 at 10). Arti le V, Section 7, of the By-Laws reads: "Regrouping of Space. In respect of apartments for which the proprietary lease and shares issued to accompany the same are owned by the Sponsor named in the Plan of Cooperative Organization or the Sponsor's Nominee or the Sponsor's Assignee (who while entitled to occupy such apartments for his personal use does not do so), such Sponsor, Nominee, or Assignee may, upon the written consent of only the Managing Agent of the Building, change the number of such apartments by increasing or decreasing their size, or change the size, layout or location of any such apartment; but such Sponsor, Nominee, or Assignee shall not have the right to reallot the shares allocated to any of the apartments offered for sale under said Plan, unless such reallocation is designed to reflect a change in the value of the equity in the property attributable to the apartment or apartments to which the block of shares is being reallocated. Upon any regrouping of space in the building, the proprietary leases so affected, and the accompanying share certificates shall be surrendered, and there shall be executed and delivered in place thereof, respectively, a new proprietary lease for each separate apartment involved, and a new certificate for the number of shares so reallocated to each new proprietary lease" c No. 159 at 9; Wells affirmation in support, Exhibit "F"). Wells affirms that he was also the de f: cto managing agent for the Building (NYSCEF Doc No. 180, ~ 5). Thus, defendants maintain tha they cannot have breached the Lease and urge the court to dismiss the first cause of action. Defe dants' arguments lack merit. The fact that the Offering Plan and the By-Laws allowed the s onsor or its assignee to change the layout and size of an unsold unit did not dispense with the req irement that any such work must comply with the law. Under the Offering Plan, a holder ofuns ld shares must "fulfill his obligation under his proprietary lease" (NYSCEF Doc No. 158 at 33). dditionally, when defendants began occupying the Unit in 1984, they became "the occupant[s] t ereof," thereby freeing the sponsor from his obligations under the Lease (NYSCEF Doc No. 158 t 33). Therefore, once Wells executed the Lease in 1981, defendants were obligated 16 17 of 32 [* 17] INDEX NO. 653104/2015 NYSCEF DOC. NO. 312 to comply RECEIVED NYSCEF: 06/04/2019 ith its provisions, regardless of Wells' status as the sponsor or the holder of unsold shares. As uch, defendants' attempt to escape liability on this ground fails. Defl ndants also argue that the shareholders' awareness of the improvements implies that plaintiff ta itly approved the work or waived their requisite compliance under the Lease. Defendants, though, ignore the presence of the no-waiver provision in paragraph 26 of the Lease (see Fairmo t Tenants Corp. v Braff, l 62 AD3d 442, 442 [1st Dept 2018]; River Park Residences, LP v Riehm n Plaza Garage Corp., 55 Misc 3d 140(A), 2017 NY Slip Op 50569[U] [App Term, 1st Dept 20 7], lv dismissed 30 NY3d 1040 [2017] [rejecting the plaintiffs course of conduct argument in ight of the no-waiver provision in the parties' lease]). Nor i there merit to the contention that defendants bear no liability because Wells was the officer or dir ctor in charge of roof maintenance. The meeting minutes reveal that the Board met regularly to iscuss expenditures and to vote on how to proceed with Building maintenance, no matter how inor the issue. For example, the minutes from April 4, 2000 indicate that the second- floor tenant t the time, Hiromi Honda ("Honda"), would purchase a broom and dust for cleaning the Building's lobby, and Kidd would purchase lightbulbs for the hallways (NYSCEF Doc No. 236, Wells a irmation in opposition, Exhibit "O" at 1). This practice comports with the language in article III, section 7 of the By-Laws, which states that "[t]he Board of Directors shall have discretionary ower to prescribe the manner of maintaining and operating the apartment house .. ." (NYSCEF Doc No. 159 at 5), and nothing in the By-Laws permits an officer or director to unilaterally s bstitute his or her decision for the entire Board. The meeting minutes also reflect defendants' a areness of this rule. Indeed, the minutes from October 9, 1991 show that Wells raised the iss e of coating the roof with aluminum asphalt (NYSCEF Doc No. 229 at 1), and the minutes from October 15, 2002 show that Wells raised the issue of replacing the roof (NYSCEF Doc No. 229 t 4). The minutes also reveal that, counter to defendants' claim of ownership of the 17 18 of 32 [* 18] INDEX NO. 653104/2015 NYSCEF DOC. NO. 312 RECEIVED NYSCEF: 06/04/2019 roof, the B ard once declined defendants' offer to pay more than their share of the repair costs Des ite defendants' prior practice of discussing roof maintenance with the Board, Wells failed to infl rm the Board that he intended to remove and replace the capstones (NYSCEF Doc No. 155 at 17). Wells testified that he spoke to a contractor about repairing the roof, but he "figured it as cheaper if I did it than if the co-op did it. I mean you can lift off easily with the camelbacks, in most cases, not all cases" (id. at 116, lines 5-8). Wells, though, admitted that it was his und rstanding the "parapet walls and the bulkhead and the chimney" were not part of his easement o exclusive use (id. at 42 and 112). Whether the Board learned of the capstone modificatio s after they were completed does not invalidate the By-Law stating that the Board shall control operations. Moreover, defendants personally benefited from the installation of the planter boxe in which they grew decorative plants, herbs and vegetables (id. at 125). Para raph 7 of the Lease allows plaintiff to charge a lessee for the removal of any rooftop structure a le see has installed (NYSCEF Doc No. 160 at 7). Paragraph 11 provides for indemnity for a lessee' default (id. at 8). Likewise, paragraphs 19 and 25 allow plaintiff to recover its expenses for any obligation a lessee fails to perform (id. at 14 and 17). Paragraph 28, titled "Reimburse ent of Lessor's Expenses," also recites as follows: "If the Lessee shall at any time be in default hereunder and the Lessor shall incur any expense (whether paid or not) in performing acts which the Lessee is required to perform, or in instituting any action or proceeding based on such default, or defending, or asserting a counterclaim in, any action or proceeding brought by the Lessee, the expense thereof to the Lessor, including reasonable attorneys' fees and disbursements, shall be paid by the Lessee to the Lessor, on demand, as additional rent" (id. at 18). oodman avers that plaintiff has incurred $439,878.10 to date in construction costs and design p ofessional expenses (NYSCEF Doc No. 157, ,-i,-i 15-16). A minimum of $141,000, excluding de ign fees, is needed to repair the parapets and the roof substructure (id., ,-i,-i 17 and 24 ). 18 19 of 32 [* 19] INDEX NO. 653104/2015 NYSCEF DOC. NO. 312 Plaintiffh RECEIVED NYSCEF: 06/04/2019 also paid $29, 124 in municipal fees and penalties and $350,000 in attorneys' fees (id., ndants admit they must pay"[ sJome costs" (oral argument tr at 65, line 21 ), including "reasonabl costs" for the removal of the penthouse (id., lines 17-18) and the DOB penalties related to that stru ture (id. at 66-67). Nevertheless, issues of fact remain as to the amount. Defendants contest wh ther the capstone work encouraged water to penetrate and cause damage to the parapets, sp ndrel beam, and masonry walls or if the damage was the normal result of prolonged freeze-thaw cycles as their expert has opined (NYSCEF Doc No. 288, Erik Madsen aff, ii 10). Similarly, tr able issues of fact exist as to defendants' liability regarding the fire escape ladder and perimeter ra ling. As fi r plaintiffs attorneys' fees, the general rule is that "attorney's fees are incidents of litigation an a prevailing party may not collect them from the loser unless an award is authorized by agreeme t between the parties, statute or court rule" (Hooper Assoc. v AGS Computers, 74 NY2d 487, 91 [1989] [citations omitted]). A lease provision that provides for the payment of attorneys' fe s should be strictly construed (see Andrews 44 Coffee Shops Inc. v TSTITMW 405 Lexington, L. ., 40 AD3d 544, 545 [1st Dept 2007]). Pursuant to paragraph 28, plaintiff is entitled to collect rea onable attorneys' fees and costs from defendants if plaintiff performs an act that defendants w re required to perform. Since plaintiff commenced this action following defendants' default, it is titled to recover its reasonable attorneys' fees (see 0 'Neill v 225 E. 73rd Owners 2d 239, 239 [1st Dept 2002], lv denied 100 NY2d 504 [2003]; accord Isaacs v Jefferson Ten nts Corp., 270 AD2d 95, 95 [1st Dept 2000]). With espect to plaintiffs request for punitive damages, a plaintiff seeking punitive damages arisi g out of a breach of contract must allege that (1) defendant's conduct must be actionable as independent tort; (2) the tortious conduct must be of an egregious nature (3) the 19 20 of 32 [* 20] INDEX NO. 653104/2015 NYSCEF DOC. NO. 312 RECEIVED NYSCEF: 06/04/2019 egregious c nduct must be directed to plaintiff; and (4) the conduct must be part of a pattern directed at e public generally (see New York Univ. v Continental Ins. Co., 87 NY2d 308, 316, [1995], citi g Rocanova v Equitable Life Assur. Soc'y of US, 83 NY2d 603, 613 [1994]). The lained of here do not rise to the type of egregious conduct aimed towards the public that would arrant the imposition of punitive damages (see Schwartz v Hotel Carlyle Owners Corp., 132 D3d 541, 543 [1st Dept 2015] [claim for punitive damages insufficient as no allegation th t defendants acted in a "morally reprehensible matter"). Cons quently, plaintiff's motion for summary judgment on the first cause of action is granted on t e issue of defendants' liability with the amount of damages due, including attorneys' fees, to be d termined at the time of trial. B. Second ause of Action for Nuisance Plain iff argues that defendants' actions constitute a nuisance per se, or in the alternative, nuisance. gh plaintiff did not plead an absolute nuisance claim in the complaint, defendants addressed th claim in their papers. Accordingly, the court will consider the issue. Defendants to dismiss this cause of action as time-barred. The Board passed the resolutions without a qu rum, and did not afford defendants time to remedy the conditions. The allegations sound in negl gence, not negligence per se, because DOB issued a partial vacate order well after this action w s filed and because the vacate order was not related to defendants' capstone work. Plaintiff also cannot assert a nuisance for harm to its own property. Lastly, plaintiff cannot establish the r quisite intent necessary for a common-law nuisance. Addre sing the limitations argument, the continuing wrong doctrine applies equally to a cause of actio for nuisance, which is otherwise subject to a three-year limitations period under CPLR 214 (4) (see Lichter v 349 Amsterdam Ave. Corp., 8 AD3d 212, 212 [1st Dept 2004], Iv 20 21 of 32 [* 21] INDEX NO. 653104/2015 NYSCEF DOC. NO. 312 dismissed3 RECEIVED NYSCEF: 06/04/2019 Y3d 738 [2004]; 1050 Tenants Corp., 289 AD2d at 146-147), because a "continuous wrong ... ' enerally give[s] rise to successive causes of action that accrue each time a wrong is committed" (Pilatich v Town of New Baltimore, 100 AD3d 1248, 1249 [3d Dept 2012] [internal citation omi ed]). Although the improvements were completed more than three years before plaintiff bro ght this action, the continued use of the penthouse and deck constitutes a continuous rong that tolls the statute of limitations. An a solute nuisance, or a nuisance per se, is "a nuisance based on an act which is unlawful, even ifper:fi rmed with due care" (State of New York v Fermenta ASC Corp., 238 AD2d 400, 403 [2d Deptl 9 7], lv denied 90 NY2d 810 [1997]). To that end, a plaintiff "need only establish a violation of aw, and need not show that the nuisance was intentional or negligent" (id. at 403). However, a violation of law only excuses a party from proving that the act is negligent or intentional ( ee Overocker v Madigan, 113 AD3d 924, 926 [3d Dept 2014]). A plaintiff must still prove the ot er elements of a private nuisance, such as "proof of a situation created by the defendants hich endangers or injures the property, health, safety, or comfort of a considerable number of p rsons" (State of New York, 238 AD2d at 403). "A b ilding or structure may constitute a nuisance by virtue of inherent lack of safety or through som harmful or illegal use" (81 NY Jur 2d, Nuisances § 40). Defendants argue that DOB never issued a notice of violation for the capstones. This fact, alone, though, is immaterial to whether plai tiff may maintain the claim (see 61 W 62 Owners Corp. v CGM EMP LLC, 77 AD3d 330, 334 [ls Dept 2010], affd as mod 16 NY3d 822 [2011]). Defendants correctly state that a "violation of municipal ordinance constitutes only evidence of negligence" whereas a "violation of a State sta ute that imposes a specific duty constitutes negligence per se" (Elliott v City of New York, 95 NY d 730, 734 [2001] [citations omitted]). However, in addition to the Building Code, plaintiff has lleged that defendants' work violated the Multiple Dwelling Law. Nevertheless, a 21 22 of 32 [* 22] INDEX NO. 653104/2015 NYSCEF DOC. NO. 312 RECEIVED NYSCEF: 06/04/2019 nuisance p r se cannot be predicated solely upon the existence of a violation (see Overocker, 113 AD3d at 92 ), and here, issues of fact exist whether the exterior masonry walls were in immediate danger of c llapse such that the "comfort and safety of others in the building" was threatened (Frank v P rk Summit Realty Corp., 175 AD2d 33, 35 [1st Dept 1991], mod on other grounds 79 NY2d 789 [ 991 ]). The two cases plaintiff cites in support are factually dissimilar as they involved personal inj ries from unauthorized obstructions on a public street or sidewalk (see Delaney v Philhern Re lty Holding Corp. 280 NY 461, 464 [1939] [finding that the defendant erected an obstruction n a sidewalk without the appropriate license, which caused the plaintiff to fall]; Driscoll v Ni w York City Tr. Auth., 53 AD2d 391, 394 [1st Dept 1976] [stating that the jury should en an absolute negligence charge because a defendant had engaged in repair work ithout the requisite permits]). A pr vate nuisance is "a continuous invasion of rights - 'a pattern of continuity or recurrence o objectionable conduct"' (Darnen Holding Co. v Aranovich, 1 NY3d 117, 124 [2003] [citation omi ed]). The objectionable conduct "must interfere with a person's interest in the use and enjoyme t of land" (id at 123). Thus, the elements for a private nuisance claim are: "(l) an interference s bstantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person's pr perty right to use and enjoy land, (5) caused by another's conduct in acting or failure to act" (Copa t Indus. v Consolidated Edison Co. ofN Y., 41NY2d564, 570 [1977], rearg denied 42 NY2d 110 [ 1977] [citations omitted]). An intentional interference arises when "the actor (a) ose of causing it; or (b) knows that it is resulting or is substantially certain to result from his cond ct" [id at 571 [internal quotation marks and citation omitted]). The is ue of whether a private nuisance exists is generally a question for the jury (see Weinberg v L bardi, 217 AD2d 579, 579 [2d Dept 1995]), and in this instance, neither plaintiff nor defendant have met their burden on summary judgment. Plaintiff alleges that defendants' 22 23 of 32 [* 23] INDEX NO. 653104/2015 NYSCEF DOC. NO. 312 RECEIVED NYSCEF: 06/04/2019 1mproveme ts amounted to a nuisance because their conduct interfered with plaintiff's rights to use and enj y the Building and caused substantial water damage to it. But, it has not shown that defendants i tended to cause the interference (see Roundabout Theatre Co. v Tishman Realty & Constr. Co., 302 AD2d 272, 273 [1st Dept 2003]), even though they ultimately benefited from the objectionabl conduct. Wells' testimony that he was aware as early as November 2014 that repairs were necess ry and offered to sign an alteration agreement (NYSCEF Doc No. 155 at 211) belies the claim th t defendants had no time to abate the nuisance. event, a private nuisance may arise from negligent conduct (see Liberman v Cayre Synergy 73r LLC, 108 AD3d 426, 427 [1st Dept 2013]), where "negligence must be proven" (Murphy v oth, 84 AD3d 761, 763 [2d Dept 2011]). Despite defendants' assertion that Wells was qualifie to complete the alterations, he did not consult with an architect or structural engineer about the w rk, including whether the roof substructure could support the added weight of the capstones, pl nters, decks, or greenhouse or penthouse extensions. Notably, the spandrel beam in the roof subs ructure has buckled. Lastly, despite discussing roof repairs with the Board on prior occasions, d fondants did not advise the Board of their alterations. Whether defendants' actions were reason le, and whether they breached a duty of care by performing the work in a negligent manner shou d be left to a jury to determine. use of Action for Injunctive Relief and Fourth Cause of Action and the First, bird Counterclaims for a Declaratory Judgment The t ird and fourth causes of action seek an injunction prohibiting defendants from using the roof in vi lation of the Building's governing documents and the law, and a judgment declaring that defenda ts' attempt to occupy the entire roof is illegal. Defendants' first, second and third counterclaim essentially seek a declaratory judgment expanding their easement to cover the entire usable portio of the roof. 23 24 of 32 [* 24] INDEX NO. 653104/2015 NYSCEF DOC. NO. 312 RECEIVED NYSCEF: 06/04/2019 Plai tiff submits that the govemmg documents granted the seventh floor tenants a revocable l"cense, not an easement, and defendants cannot claim an express or prescriptive easement o er a common area. Assuming the documents created an express easement, plaintiff maintains t at the easement must be limited to 700 square feet per the Offering Plan. Defi ndants posit that the Offering Plan and Lease created an express easement over the entire usabl portion of the roof because both documents excluded only the stairway/elevator bulkhead, c imney and flue outlets. They submit that plaintiff erroneously relies upon the Offering Plan as evid nee that their use was restricted to 700 square feet because that estimate was one of several typ graphical errors in that document. Moreover, plaintiffs interpretation of the documents i nonsensical. The Offering Plan allocated three shares to both the Unit and the commercial nit to account for their larger sizes and higher maintenance costs, whereas all other floor-throug units were allocated two shares. Even if the documents created an express easement of only 700 quare feet, defendants claim to have acquired an easement by prescription over the entire usable ortion of the roof. CPL 3001 provides, in part, that the "court may render a declaratory judgment having the al judgment as to the rights and other legal relations of the parties to a justiciable controversy hether or not further relief is or could be claimed." A declaratory judgment action requires an a tual controversy (see Long Is. Light. Co. v Allianz Underwriters Ins. Co., 35 AD3d 253, 253 [1st ept 2006], appeal dismissed 8 NY3d 956 [2007]). Relief is limited to a declaration of the parties' legal rights based on the facts presented (see Thome v Alexander & Louisa Calder Found., 70 A 3d 88, 100 [1st Dept 2009], lv denied 15 NY3d 703 [201 O]). It is w ll settled that "[t]he relationship between the shareholder/lessees of a cooperative the corporation is determined by the certificate of incorporation, the corporation's bylaws and th proprietary lease" (Fe Bland v Two Trees Mgt. Co., 66 NY2d 556, 563 [1985]), 24 25 of 32 [* 25] INDEX NO. 653104/2015 NYSCEF DOC. NO. 312 RECEIVED NYSCEF: 06/04/2019 and that or inary contract principles apply in interpreting those documents (see Kralik v 239 E. 79th St. Ow ers Corp., 5 NY3d 54, 58 [2005]; see also George Backer Mgt. Corp. v Acme Quilting Co., 46 NY d 211, 217 [ 1978] [stating that "a lease is subject to the rules of construction applicable to any othe agreement"]). Generally, a written agreement must be construed according to the parties' inte t (see Greenfield v Philles Records, 98 NY2d 562, 569 [2002]). The document must be read as a hole "to determine its purpose and intent" (WWW Assoc. v Giancontieri, 77 NY2d 157, 162 [1 90]), and '"particular words should be considered, not as if isolated from the context, but in the li ht of the obligation as a whole and the intention of the parties manifested thereby"' (Cortlandt S. Recovery Corp. v Sonderman, 31NY3d30, 39 [2018], quoting Kolbe v Tibbetts, 22 NY3d 344, 53 [2013]). Thus, "when parties set down their agreement in a clear, complete document, t eir writing should as a rule be enforced according to its terms" without consideration of extrinsic vidence ( W W W Assoc., 77 NY2d at 162). But, if the terms are "susceptible of two reasonable i terpretations," then the contract is ambiguous (Ellington v EM! Music, Inc., 24 NY3d 239, 244 [2014] [internal quotation marks and citation omitted]). In that instance, the court may consider ext 'nsic evidence to determine the parties' intent (see Greenfield, 98 NY2d at 569). The ffering Plan and the Lease determine the extent of defendants' rights to the roof (see Fairmont Te ants Corp., 162 AD3d at 442; 1050 Fifth Ave. v May, 247 AD2d 243, 243 [1st Dept 1998]). Para raph 7 of the Lease grants the Unit's occupant "exclusive use of substantial portions of the roof' ( ee Rose v 115 Tenants Corp., 150 AD3d 472, 472 [1st Dept 2017]; Gracie Terrace Apartment C rp. v Goldstone, 103 AD2d 699, 700 [1st Dept 1984], appeal dismissed 63 NY2d 952 [1984 ]), aking a portion of the roof part of the leased premises (see Garza v 508 W II 2th St., Inc., 71 AD3d 567, 567 [1st Dept 2010]). The Offering Plan contains nearly identical language. T s, the documents plainly grant the occupants of the Unit "exclusive use" of the roof (see Washbu v 166 East 96th Street Owners Corp., 166 AD2d 272, 273 [1st Dept 1990]). 25 26 of 32 [* 26] INDEX NO. 653104/2015 NYSCEF DOC. NO. 312 " RECEIVED NYSCEF: 06/04/2019 reas a license connotes use or occupancy of the grantor's premises, a lease grants exclusive p ssession of designated space to a tenant, subject to rights specifically reserved by the lessor" (Pro pect Owners Corp. v Sandmeyer, 62 AD3d 601, 602 [1st Dept 2009], Iv denied 13 NY3d 717 [ 010] [internal quotation marks and citation omitted]). Here, defendants were granted "exclusive u e" of the roof, despite the controlling documents' characterization of such use as an easement, a d not a revocable license (see City of New York v Pennsylvania R.R. Co., 37 NY2d 298, 300 [1 75] ["A court in its effort to determine the true character of an instrument must look at the nature fthe right rather than to the name that the parties gave it"]). Defendants' use, though, is modified y the language in paragraph 21 of the Lease describing an "easement with exclusive use of subst ntial portions of the roof, exclusive of elevator bulkhead, chimney, flue outlets, and other spaces which are reserved for maintenance" (NYSCEF Doc No. 160 at 7). The Offering Plan further escribes the grant as an "easement of exclusive use of substantial portions of the roof, exclusive of elevator bulkhead, chimney, flue outlets, and other spaces which are reserved for maintenance. This exclusive easement space is estimated at about 700 square feet" (NYSCEF Doc No. 158 at 7) The t rms describing the size of defendants' area of exclusive use are ambiguous. The parties agree that the elevator bulkhead, chimney and flue outlets are excluded. However, the word "substa tial" and the term "other spaces" are not defined in the Lease or the Offering Plan. The Offering Ian also restricts the size of the easement to approximately 700 square feet, without designating here the exclusive easement lies atop the roof. Wher language describing an express easement is ambiguous, the court may consider the surrounding c rcumstances to determine the parties' intent (see Jhae Mook Chung v Maxam Props., LLC, 73 AD d 505, 506 [1st Dept 2010]; Board of Mgrs. of Bayside Plaza Condominium v Mittman, 50 D3d 718, 719 [2d Dept 2008]). Defendants assert that the size of the easement in 26 27 of 32 [* 27] INDEX NO. 653104/2015 NYSCEF DOC. NO. 312 RECEIVED NYSCEF: 06/04/2019 the Offerin Plan should have read 1, 700 square feet, which is the size of the entire usable portion of the roof, and that the missing "1" was a mere typographical error. constitutes "A scrivener's error mistake solely in the reduction of an agreement to writing" (Rosalie Estates, Inc. v Colonia Ins Co., 227 AD2d 335, 337 [1st Dept 1996]), and "courts may as a matter of interpretatio carry out the intention of a contract by transposing, rejecting, or supplying words to make the m aning of the contract more clear ... where some absurdity has been identified or the contract wo ld otherwise be unenforceable either in whole or in part" (Matter of Wallace v 600 Partners Co, 86 NY2d 543, 547-548 [1995] [citations omitted]). A party asserting a claim of mistake mus "overcome the heavy presumption that a deliberately prepared and executed written instrument anifested the true intention of the parties, [with] evidence of a very high order" (George Bae er Mgt. Corp., 46 NY2d at 219, citing Christopher & Tenth St. R.R. Co. v Twentythird St. Ry. o., 149 NY 51, 58 [1896]). Defe dants' contention that Wells, as the sponsor, had always intended to create an easement ov r the entire useable portion of the roof is not substantiated by persuasive "evidence of a very hig order" (Backer Mgt. Corp., 46 NY2d at 219). The fact that the commercial unit and the Unit wer both issued three shares each to account for their larger sizes militates in favor of finding that the easement measures more than 700 square feet. However, despite Wells' inexperience s a sponsor, he retained counsel to prepare the Offering Plan and the Lease, and he consulted wi an architect and others regarding the conversion (NYSCEF Doc No. 155 at 28). Wells did not testify or affirm that he directed his attorney to describe the easement as measuring 1, 700 square eet, and defendants offered no proof from that attorney that the directive had been communicate to him (see Ford Motor Credit Co. v Atlantic Mut. Ins. Co., 294 AD2d 206, 206 [1st Dept 200 ]). Significantly, defendants' position is supported solely by Wells' statements, and defendants w uld be the ultimate benefactors of any finding in their favor. Finally, defendants 27 28 of 32 [* 28] INDEX NO. 653104/2015 NYSCEF DOC. NO. 312 RECEIVED NYSCEF: 06/04/2019 never objec ed to the error before plaintiff commenced this action (see Matter of Union Indem. Ins. Co. of .Y, 162 AD2d 398, 399 [1st Dept 1990]). Thus, a triable issue of fact exists as to whether the ypographical mistake may be labeled an unintended scrivener's error. Nex defendants rely on the doctrine of inclusio unius est exclusio alterius, which is "[a] canon of co struction holding that to express or include one thing implies the exclusion of the other, or of e alternative" (Black's Law Dictionary [10th ed 2014], expressio unius est exclusio alterius), to upport their position that all areas other than the stairway/elevator bulkhead, chimney and flue out ets are included in the easement (see Two Guys from Harrison-NY v S.F.R. Realty Assoc., 63 Y2d 396, 404 [1984]). Their reliance on this doctrine, though, is misplaced. The controlling ocuments plainly granted plaintiff the right to reserve other areas for maintenance (see Baker I6 Sutton Place Apt. Corp., 72 AD3d 500, 500-501 [1st Dept 2010] [denying summary ju gment to the plaintiff tenants/shareholders who had argued that the defendant cooperative' proprietary lease restricted the cooperative's common roof rights to erecting and maintaining quipment]). Additionally, an issue of fact exists whether defendants' area of exclusive us is restricted to 700 square feet, as noted above. Defe dants also contend that the water tank bulkhead constitutes an appurtenance to their Unit. Appu enances are "incorporeal easements or rights and privileges which are essential or reasonably n cessary to the full beneficial use and enjoyment of the property conveyed or leased" (Second on econd Cafe, Inc. v Hing Sing Trading, Inc., 66 AD3d 255, 267 [1st Dept 2009] [internal citat on omitted]). Generally, appurtenant rights arise from the parties' intent at the time a lease is exe uted (id. at 268-269). "[A]n appurtenant easement need not be 'absolutely necessary to the enjoym nt of the property' but only necessary to its full enjoyment" (M N S. Brandel!, Inc. v Roosevelt ssau Operating Corp., 42 AD2d 708, 712 [2d Dept 1973], mot to dismiss appeal d 682 [1973] [internal quotation marks and citation omitted]). When the Offering 28 29 of 32 [* 29] INDEX NO. 653104/2015 NYSCEF DOC. NO. 312 RECEIVED NYSCEF: 06/04/2019 Plan was is ued, the water tank supplied domestic water to the Building (NYSCEF Doc No. 2 at 66 and 71) and the Building was not converted to a pump system until 1982 at the earliest (NYSCEF oc No. 156, Tumulty affirmation, Exhibit "E" at 2). Thus, when Wells filed the Offering Pl n in 1980 and executed the Lease in 1981, he could not have intended to include the water tank b lkhead as an appurtenance. While the water tank bulkhead provided defendants with a more con enient access point to the roof, "mere convenience is not sufficient" to find an appurtenant asement (id., quoting Anixter v Bangor Realty Corp., 104 Misc 613, 616 [Sup Ct, NY County 918]). Thus, defendants have not established that the water tank bulkhead qualifies as an appurt nance. Defe dants next argue that they acquired a prescriptive easement over the entire usable portion of t e roof. "An easement by prescription is generally demonstrated by proof of the adverse, ope and notorious, continuous, and uninterrupted use of the subject property for the prescriptive eriod" (Gilliland v Acquafredda Enters., LLC, 92 AD3d 19, 27 [1st Dept 2011], quoting Alm ida v Wells, 74 AD3d 1256, 1259 [2d Dept 201 O]). "[T]he period of prescription begins to run when a party acting under a claim of right commences a use of the easement that is adverse to its owner" (Spiegel v Ferraro, 73 NY2d 622, 627 [1989]). The party asserting the claim bears the bur en of proving each element by clear and convincing evidence (see Amalgamated Dwellings, Jn . v Hillman Haus. Corp., 33 AD3d 364, 364 [1st Dept 2006]). If such use is shown to be open, n torious, continuous and undisputed, then it is incumbent upon the opposing party to show that sue use was permissive (id.). Defen ants tender affirmations or affidavits from former tenants and shareholders Honda, Robert Sloan "Sloan") and Michael Witkin ("Witkin") collectively describing a belief that Wells owned the en 're roof and controlled all access to it via a locked door from the common stairway (NYSCEF Do No. 201, Honda affirmation,~~ 3-4; NYSCEF Doc No. 199, Sloan affidavit,~~ 629 30 of 32 [* 30] INDEX NO. 653104/2015 NYSCEF DOC. NO. 312 RECEIVED NYSCEF: 06/04/2019 8; NYSCE Doc No. 200, Witkin aff, ,-r,-r 6-7). Defendants' documents purport to show that Wells maintained sole possession of the key to the locked door (NYSCEF Doc No. 191, Wells affirmation, Exhibit "K" at 7, 9). However, triable issues of fact exist concerning the exclusivity and permis ive nature of defendants' use (see Prospect Owners Corp., 62 AD3d at 603 [stating that the de:fi ndants had not acquired exclusive use of the roof through adverse possession because of the parti s' ongoing landlord/tenant relationship]; Cassidy v Reydon Shores Prop. Owners Assn., 233 D2d 359, 360 [2d Dept 1996] [finding a question of fact as to the effectiveness of the attempts to elude others from the easement]). Goodman testified that he gave plaintiff copies of the key to t e roof (NYSCEF Doc No. 265, plaintiffs affirmation in opposition, Exhibit "A" [Goodman t ] at 55), and Kidd testified that he never needed permission to access the roof (NYSCEF D c No. 266, plaintiffs affirmation in opposition, Exhibit "B" [Kidd tr] at 51 and 102). Wells also a urned that everyone in the Building had access to the roof for maintenance (NYSCEF ,-i 13). Lastly, defendants have not demonstrated that their improvements covered the entire us le portion of the roof. "Ad claratory judgment should not be granted where the action serves to increase rather than to decre se litigation or where it results in trying a controversy piecemeal" (Smith v Western Union Tel. C ., 276 App. Div. 210, 213-214 [1st Dept 1949], affd 302 NY 683 [1951]). Given the issues related to the size of defendants' easement of exclusive use, the court declines to issue injunctive rel· ef or a judgment declaring the parties' rights to the roof. As such, the motions for summary jud ment on plaintiffs third and fourth causes of action and on defendants' first, second and third cou terclaims are denied. D. The Four h Counterclaim for Breach of Contract and the Fifth Counterclaim for Breach of Covenant f Quiet Enjoyment In the r fourth counterclaim, defendants allege that plaintiff breached the Lease by unreasonably ithholding its consent to allow defendants to remedy the unsafe conditions on the 30 31 of 32 [* 31] INDEX NO. 653104/2015 NYSCEF DOC. NO. 312 roof. RECEIVED NYSCEF: 06/04/2019 The fifth counterclaim seeks damages for breach of the covenant of quiet enjoyment. Defendants claim that the Board has denied them their ability to quietly use and enjoy the roof. Additionall , defendants allege that the Board has neither remedied a persistent gas leak at the Building n r has it stopped another shareholder from engaging in illegal commercial activity in her unit. either plaintiff nor defendants addressed the specific merits of these two causes of s, the motions for summary judgment on defendants' fourth and fifth counterclaims are denied. The court has considered the other arguments raised by the parties and finds them unavailing. CONCLUSION Acco dingly, it is ORD RED that defendants' motion for summary judgment dismissing the complaint and for summary ·udgment on their counterclaims (motion sequence no. 005) is denied, and it is further ORD RED that plaintiffs motion for summary judgment (motion sequence no. 006) is granted on th issue of defendants' liability on the first cause of action, and the motion is otherwise denied; and i is further ORD RED that the amount of damages due to plaintiff on the first cause of action, including pla· tiffs reasonable attorneys' fees and costs, shall be assessed at the time of trial. Dated: /'1 Vi J (1 2U 14 ENTER: ;~i\.''/ J.S.C. 31 32 of 32

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