GANFER & SHORE, LLP
COURT DISMISSES SECOND-HAND SMOKE CASE
AGAINST NEIGHBORING CONDOMINIUM OWNERS
There has been increasing attention, including in litigation, to the problems and annoyances caused by second-hand smoke. However, a suit by Manhattan condominium unit owners seeking to hold their neighbors liable for smoking in the neighbors’ apartment was recently dismissed. Ewen v. Maccherone, 32 Misc. 3d 12, 2011 WL 2088967 (App. Term 1st Dep’t May 26, 2011).
The plaintiffs in this case sued their neighbors for negligence and nuisance, claiming that defendants’ “excessive smoking” “seeped in” to the walls of plaintiffs’ unit. According to plaintiffs, the problem was exacerbated by “a building wide ventilation or ‘odor migration’ construction design problem.” As a result, plaintiffs contended, “secondhand smoke fills [their] kitchen, bedroom, and living room, causing them to vacate the unit often at night and resulting in personal injuries.” The defendants moved to dismiss, arguing that nothing in the Condominium Declaration or By-Laws prohibited or restricted smoking inside their apartment and that the Condominium, which had not been sued, was a necessary party to the action. Plaintiffs responded that while smoking was not expressly prohibited, it was not expressly permitted either, and that their claims for nuisance and negligence were sufficiently pleaded to satisfy all legal requirements.
A lower court denied defendants’ motion to dismiss, but the appellate court reversed. With respect to the nuisance claim, the court quoted a longstanding precedent that “[p]ersons living in organized communities must suffer some damage, annoyance and inconvenience from each other…. If one lives in the city he [or she] must expect to suffer the dirt, smoke, noisome odors and confusion incident to city life.” Rather, a nuisance will be found only where defendants’ use of their own property “constitutes an unreasonable and ‘continuous invasion …’” of plaintiffs’ property rights. Here, in the absence of any statute or condominium rule prohibiting smoking within the condominium units, the court concluded that defendants’ conduct in smoking in the privacy of their own home was not so unreasonable as to constitute a nuisance. Similarly, the court dismissed the negligence claim because defendants did not owe plaintiffs any legal duty to refrain from smoking inside their own apartment. The court also faulted plaintiffs for apparently failing to seek action by the Condominium Board of Managers to address the building’s ventilation problems.
ISSUES OF FACT PRECLUDE SUMMARY JUDGMENT ON
CLAIM FOR DOWN PAYMENT IN ABORTED CO-OP SALE
Whether the would-be purchasers of a cooperative unit are entitled to return of their down payment after cancelling the purchase contract raised issues of fact that could not be resolved on a motion for summary judgment, according to the decision in Colacino v. Andrews, 32 Misc. 3d 1220(A), 2011 WL 2937281, 2011 N.Y. Slip Op. 51369(U) (Sup. Ct. N.Y. Co. July 21, 2011).
The purchase contract allowed the purchasers to terminate the contract of sale and recover their 10% down payment if the Cooperative’s Board of Directors did not unconditionally approve the purchase by October 15. When the purchasers sought board approval, the Board indicated it was concerned that the purchasers’ financial data were several months old and, through its managing agent, requested that the purchasers supply various additional information. The managing agent later advised the purchasers that the Board would require plaintiffs to sell their current residence before closing on the purchase. At some point, the purchasers claimed that they “began to consider it to be a foregone conclusion that the Board would not give its unconditional approval to the sale of the apartment” by the required date. The purchasers gave notice of cancellation of the contract of sale and demanded a refund of their down payment, but the sellers refused, and the purchasers sued.
The court observed that the purchasers were entitled to cancel the contract if the Board did not unconditionally approve the purchase by October 15. The managing agent’s statement that the purchase was approved subject to the purchasers’ sale of their other residence before closing represented a conditional, not an unconditional, approval. However, an issue of fact existed regarding whether the purchasers’ own actions led to the Board’s denial of unconditional approval. It appeared that the purchasers had delayed the sale of their prior residence, even though this was inconsistent with their stated desire to close on and move into their new cooperative unit. If the sellers could show at a trial that “the failure of the parties to obtain the Corporation’s unconditional approval ... was a circumstance of the [purchasers’] own making,” then the sellers would prevail, because “it is well established that a party to a contract cannot rely on the nonoccurrence of a condition precedent where that party has frustrated or prevented the occurrence of the condition.”
The court also held that if the sellers establish their position at trial, they will be entitled to retain the purchasers’ 10% down payment, because “courts have consistently enforced provisions in real estate contracts permitting sellers to retain a 10% down payment as liquidated damages.”
LIMITED INJUNCTION GRANTED PROVIDING
TENANT-SHAREHOLDER WITH USE OF ROOF AREA
Where a tenant-shareholder of a Cooperative was entitled under the offering plan and her proprietary lease to use the roof area appurtenant to her apartment, but the Board of Directors forbade her from using the roof because of its poor physical condition, the tenant-shareholder was entitled to an injunction allowing her to use the roof. So held a split Appellate Division panel in Shapiro v. 350 E. 78th Street Tenants Corp., 85 A.D.3d 601, 926 N.Y.S.2d 67 (1st Dep’t June 23, 2011).
It was undisputed that as a result of major water leaks within the Cooperative’s building, the roof area appurtenant to plaintiff’s apartment, of which the proprietary lease allowed her exclusive use, was damaged and required repair. After the Cooperative “forbade [plaintiff] to use or even walk on the roof,” she filed an action seeking an order overturning the Cooperative’s restriction on her use of the roof, and directing the Cooperative to repair the roof and maintain it in a usable condition, including the capacity to permit a weight-bearing deck to be erected there.
The appellate court affirmed an injunction requiring the Cooperative to allow plaintiff to use the roof space and to make repairs or improvements sufficient for this purpose. However, the court held that a trial would be required on issues of fact such as whether the deck that plaintiff sought to install would comply with the applicable building and fire codes, as well as whether the Cooperative had previously authorized the tenant-shareholder to install decking and furniture on the roof and whether she had caused any damage to the roof for which she was liable to the Cooperative. While two dissenting Justices opined that the injunction was too vague and was premature until it was determined what uses of the roof were permissible, the majority disagreed.