APRIL 2011

Cellphone companies are continually seeking new locations for antenna installations on building rooftops. When the roof belongs to a Condominium, the Board of Managers’ authority to lease roof space for this purpose must be evaluated under the Condominium’s governing documents, including the Declaration and By-Laws. In one recent case, a New York court upheld the Board of Managers’ authority to enter into such a lease. Vassi v. Salem House Condominium Board, 30 Misc. 3d 1233(A), 2011 WL 833803 (Sup. Ct. N.Y. Co. Mar. 10, 2011). 

 

In this case, the plaintiff unit owners alleged that the lease violated several By-Law provisions. First, they contended that the lease violated a restriction against acts that would structurally change the building. The court held this provision inapplicable because the telecommunications equipment could be removed when the lease expired. Second, the unit owners contended that the antenna installation violated a By-Law prohibiting uses of the property that would constitute “a source of annoyance to the residents” or “interfere with the peaceful possession or proper use of the premises….” The court held that this By-Law was too vague for a court to enforce. In any event, the antenna installation plans had been modified to address the unit owners’ concerns. 

 

The unit owners next contended that the lease violated a By-Law requiring that the unit owners’ approval is required for any expenditure for alterations, additions, or improvements to the building costing in excess of $100,000. The court held that this provision applied only to common expenses to be incurred by the Condominium itself, not to expenses to be incurred by a third party such as the telecommunications company. The court concluded its analysis by observing that since the antenna lease did not violate any of the Condominium’s governing documents or the Board’s fiduciary duties, the Board’s decision to enter into it was protected by the Business Judgment Rule.

 

The plaintiff unit owners also contended that radio emissions from the telecommunications antenna would create an alleged health and safety hazard to residents. The court observed that plaintiffs had failed to present any scientific evidence that the emissions would create any hazard. However, the court declined to rule on this issue, holding that under federal law, any claims of this nature must be presented exclusively to the Federal Communications Commission for resolution.

 

            Although the court held that this particular Condominium Board of Managers had authority to lease roof space for a cellphone antenna, this conclusion does not apply to all condominiums. In Kaung v. Board of Managers, 22 Misc. 3d 854, 873 N.Y.S.2d 421 (Sup. Ct. Westchester Co. 2008), affirmed, 70 A.D.3d 1004, 895 N.Y.S.2d 505 (2d Dep’t 2010), a Condominium’s By-Laws contained a provision limiting uses of common elements such as the roof to those uses incidental to residential use. The courts held that this provision precluded the Board of Managers from leasing rooftop space for a wireless communications site. Thus, the specific language of a Condominium’s governing documents will control whether a Board of Managers may enter into this type of a lease.

 

Would-be sellers of a cooperative unit, as well as the prospective purchasers, have standing to allege age discrimination claims under the New York State Human Rights Law, according to the decision in Stalker v. Stewart Tenants, Index No. 102442/10 (Sup. Ct. N.Y. Co. Nov. 24, 2010). In this case, the plaintiff tenant-shareholders contracted to sell their unit, but the purchasers’ application was rejected by the Cooperative’s Board of Directors, allegedly on discriminatory grounds. The tenant-shareholders sued, and the Board moved to dismiss their claims on the ground that it was the proposed purchasers, rather than the sellers, whose application had been rejected.

 

The court denied the Board’s motion to dismiss plaintiffs’ claim under the Human Rights Law. The decision acknowledged that plaintiffs were not themselves members of a protected class, nor were they the contract purchasers of the unit. Nonetheless, they had suffered damages as the direct result of the Board’s allegedly discriminatory conduct against the purchasers, who were members of a protected class. The court found sufficient evidence of possible discrimination to allow the claim to proceed, including that the board purported to base its denial of the purchase application on a rule that it had not consistently invoked against other purchasers.

 

The court dismissed plaintiffs’ parallel claim under the Fair Housing Act, however. The court held that this statute requires that the plaintiffs must themselves be members of a protected class who applied for and were refused housing. Under this standard, the plaintiffs lacked standing to sue.

 

On March 29, 2011, New York City issued a new protocol for responding to reports of bedbug infestations. The Department of Housing Preservation and Development and the Department of Health and Mental Hygiene will require the owners of properties where bedbug infestations have been identified to inspect and treat adjacent units. In the event of multiple occurrences, an owner may need to design and disseminate a building-wide pest management plan to residents or have a licensed exterminator complete an affidavit of correction of pest infestation. Owners who fail to respond on a timely basis to inquiries from city agencies may receive citations and be subject to fines.

 

 The City has developed a website is intended to provide New York City residents, building owners, and property managers with comprehensive information on how to prevent, recognize, and treat bedbug infestations. The website can be found at nyc.gov/bedbugs.  In addition, as there are further developments in this area of increasing concern, including the possible enactment of additional State or City legislation, we will report on them in future issues of this Client Advisory.

Effective April 12, 2011, a new New York statute known as the Wage Theft Prevention Act will significantly broaden employer liability for violations of New York State law regarding employee wages and overtime. The Act also imposes new notice and recordkeeping requirements. All employers in New York State should be aware of the new requirements.

 

            Ganfer & Shore, LLP has reported on these requirements for employers in a recent issue of our Client Employment Law Advisory.  To obtain a copy of this report, please visit our website at http://web2.customwebexpress.com/ganshore/UserFiles/File/February%202011%20Employment%20Newsletter.pdf, or request a copy by e-mail from ebellusci@ganfershore.com.