Fordham University School of

From the SelectedWorks of Hon. Gerald Lebovits

2008

Cooperatives and in the Housing Court Gerald Lebovits

Available at: https://works.bepress.com/gerald_lebovits/113/ NYSBA SPRING 2008 | Vol. 36 | No. 2 N.Y. Real Journal A publication of the Law Section of the New York State Bar Association

Inside • Landlord’s Checklist of Silent Lease Issues . . . and other important articles Cooperatives and Condominiums in the New York City Housing Court By Gerald Lebovits and James P. Tracy

I. Introduction vest decision-making power with tion of the cooperative, and so have proprietary lessees rather than with a voice in managing the building. Cooperatives and condomini- 6 ums are unique forms of valuable the board of directors. Many coop- The shares allocated to a particular property ownership that engender eratives also include in their articles unit might appreciate in value. The of incorporation powers necessary to shares and leasehold interest may be special legal issues. In New York City, 13 residential landlord-tenant issues are manage a cooperative, such as the au- leveraged. thority to buy property and buildings litigated in the Civil Court’s Hous- The proprietary lease establishes in , to lease the apartments ing Part, commonly called “Housing many of the rights and duties held by in property the corporation owns, Court.” Residential landlord-tenant the cooperative and the proprietary and to mortgage buildings.7 disputes arising in cooperatives and lessee. The most important of these is condominiums are referred to special- A cooperative corporation is the proprietary lessee’s duty to pay to ized parts. This article reviews the bound by the articles of incorpora- the cooperative maintenance charges, legal concepts and disputes litigated tion and the by-, the propri- often called rent.14 Typically, the in the New York City Housing Court etary leases, and the cooperative’s proprietary lease provides an amount Coop and Condo Part. rules and regulations.8 Cooperative that may be amended by the direc- shareholders have the right to com- tors, depending on the building’s II. Cooperatives mence a derivative action against the needs.15 Cooperatives typically en- A. The Basics corporation.9 cumber the property as a whole with a mortgage, and real-estate taxes are Cooperatives are unique owner- As with all corporations, co- levied on the entire property. Coop- ship regimes in which three differ- operative corporations owe their eratives depend on the shareholders ent property interests are created. shareholders fi duciary duties. These to satisfy those obligations.16 The fi rst interest is created when the responsibilities sometimes confl ict cooperative corporation secures the with duties the corporation, acting Other provisions in the propri- property in fee simple. The second is as landlord, owes to a proprietary etary lease deal with the right to sub- created when the shareholders pur- lessee. let, the right to make alterations, the chase the corporation’s shares, which cooperative’s house rules, the duty to are . The third is Shareholders do not own a unit make repairs, and the shareholders’ created when the corporation enters in fee simple. They own a portion of rights if they default on the lease.17 into long-term leases, called propri- a corporation that owns the entire etary leases, with those shareholders, property in fee simple. Thus, share- Real Property Law Article 7 ap- entitling each shareholder to occupy holders do not pay taxes on their plies to cooperatives and governs the a particular unit. individual unit. Instead, real-estate landlord-tenant relationship between taxes are levied on the property as a the cooperative and proprietary Cooperative corporations, which whole, and the corporation assesses lessees.18 This relationship confers own the building and its land in fee the proprietary lessees according to Housing Court’s jurisdiction on dis- simple, may be formed in New York their ownership shares.10 Similarly, putes between these parties. State under the New York Business cooperatives may encumber the en- Corporation Law,1 the Not-for-Profi t tire property with a mortgage, which B. Other Types of Cooperatives 2 Corporation Law, or the Cooperative the shareholders satisfy.11 1. Low- and Middle-Income 3 Corporation Law. Creating the coop- Housing Cooperatives erative corporation involves choosing In entering into a proprietary a corporate name, fi ling articles of lease with the cooperative, share- New York State law allows for the incorporation, and drafting by-laws.4 holders enter into a landlord-tenant creation of special cooperatives dedi- relationship with the cooperative cated to providing low- and middle- The articles of incorporation for corporation.12 This relationship is income housing. These cooperative cooperatives are tailored for coopera- similar to a conventional landlord- developments receive aid from the tives. Because corporations formed tenant relationship. It confers on a state, in the form of low-interest loans under the Business Corporation Law proprietary lessee some benefi ts of or tax-exempt status, in exchange for might include in their articles of in- fee simple ownership. Proprietary restrictions on the rent charged and corporation any provision consistent lessees, as shareholders, own a por- the process by which tenants may be with state law,5 many cooperatives evicted.

NYSBA N.Y. Real Property Law Journal | Spring 2008 | Vol. 36 | No. 2 45 a. Housing Development Fund dent’s apartment as rent-stabilized income housing. Under the Public Company does not confer protection under the Housing Finance Law, private devel- One special cooperative is the Rent Stabilization Law in contraven- opers are eligible for government- housing development fund com- tion of the explicit statutory exemp- funded mortgages, tax abatements, pany (HDFC), created under Private tion for housing accommodations or- and other incentives. In exchange for Housing Finance Law Article XI.19 ganized as a cooperative corporation this aid, the housing projects must 28 To qualify as an HDFC, the entity or operated for charitable purposes” limit their profi ts and rent increases must dedicate itself to serving low- The effect was that the tenant was a and are subject to DHCR regulation. income tenants20 and use all “income month-to-month tenant. Mitchell-Lama housing projects are required to submit fi nancial informa- and earnings of the corporation” for Because the government is “en- tion to the DHCR, which determines corporate purposes rather than for twined” in HDFCs, those companies the allowable rent increases for the “the benefi t or profi t of any private must accord their tenants due pro- project.38 individual, fi rm, corporation or as- cess required under the Fourteenth 21 sociation.” HDFCs are authorized to Amendment to the U.S. Constitution Before evicting a tenant for receive a “temporary loan or ad- before effecting an eviction.29 In fi nd- reasons other than not paying rent, vance” from funds established by the ing this “entwinement,” the Appel- a Mitchell-Lama development must statute in exchange for submitting to late Division, First Department, in fi rst obtain a “certifi cate of eviction” Department of Housing and Commu- Grimmet noted that because HDFCs from the New York Department of nity Renewal (DHCR) oversight and perform an important government Housing Preservation and Develop- 22 regulation. service by housing the poor, they are ment (HPD) before commencing a 39 HDFC buildings are established subject to strict government regula- proceeding in Housing Court. To after they fall into New York City’s tion and may revert to City owner- appeal HPD’s determination on a cer- hands, for instance, due to tax fore- ship if the HDFC fails to comply with tifi cate of eviction, a party must com- 30 closure. Instead of administering the the restrictions placed on it. This mence an Article 78 proceeding. A building or evicting the residents and “signifi cant and meaningful govern- party may not collaterally attack that 31 leaving the building vacant, the City mental participation” triggers due determination in a Supreme Court 40 will invite the residents to form an process guarantees, including notice ejectment action or in a summary 41 HDFC. The restricts the build- to the tenant of the reason for an evic- Housing Court proceeding. ing’s use to low-income housing, tion. These protections apply only to the tenant of record.32 Practitioners should keep in mind with a provision that the property the Landaverde rule and its applica- will revert to City ownership if that Due-process protections ensure tion to Mitchell-Lama cooperatives. restriction is violated. This arrange- that an HDFC tenant may not be In ATM One LLC v. Landaverde,42 the ment furthers the City’s goal of creat- evicted merely because a lease has Court of Appeals interpreted DHCR ing low-income housing while not expired.33 Rather, the HDFC may regulations implementing the Emer- requiring the City to manage large evict only for cause,34 although little gency Tenant Protection Act (ETPA) 23 amounts of . case law defi nes “cause” and in how to require a landlord to give a tenant HDFCs are exempt from rent much particularity it must be plead. 10 days’ written notice to cure and regulation because they are coop- Thus, an HDFC is unable to evict a another fi ve days to cure if the notice eratives24 and because they are non- month-to-month tenant after issuing is mailed. That rule was applied 35 profi t organizations.25 In 546 West a 30-day notice of termination. On to Mitchell-Lama cooperatives in 43 156th Street HDFC v. Smalls,26 a tenant the other hand, an HDFC successfully Southbridge Towers v. Frymer because raised as a defense in a nonpayment evicted a tenant who, in violation of the Mitchell-Lama law’s purpose and proceeding that she was entitled to her lease, did not use the unit as her language is similar to the ETPA’s. 36 rent-stabilized status, despite the stat- primary residence. In that case, the 2. Condoperatives (Condops) utory exemptions. The tenant alleged notice to cure provided the tenant that the HDFC had bestowed perma- with suffi cient notice of the alleged A condoperative, or condop, 37 nent rent-stabilized status upon her default. combines and coopera- tive ownership. Condops are build- tenancy in a stipulation resolving an b. Limited Profi t Housing ings divided into one large residential earlier nonpayment proceeding and Companies (Mitchell-Lama condominium unit and one or more had then offered a series of leases Housing) on rent-stabilized lease forms.27 The commercial condominiums. The resi- Appellate Division, First Department, Limited profi t housing compa- dential condominium is then trans- noted that the parties’ beliefs regard- nies, often known as “Mitchell-Lama” ferred to a cooperative corporation. ing the tenant’s rent-regulated status cooperatives, so-called because of the The cooperative corporation divides were not dispositive and held that the sponsoring legislators, must be dedi- the residential condominium into “subject agreement to treat respon- cated to providing low or middle- separate units allocated to the various

46 NYSBA N.Y. Real Property Law Journal | Spring 2008 | Vol. 36 | No. 2 proprietary lessees. In other words, A property becomes a condo- In contrast to a cooperative’s “hy- the cooperative owns the units under minium upon the fi ling of a declara- brid” nature, in which shareholders a condominium regime, rather than tion.55 The declaration must contain own shares of the cooperative but owning the entire building in fee information for prospective purchas- also enter into a landlord-tenant rela- simple.44 ers and contractors, including that tionship, condominium unit owners the property will be submitted to the own their unit in fee simple absolute. Condops receive tax advantages provisions of the Condominium Act; Thus, cooperative shareholders are over the conventional cooperative. a description of the land on which entitled to the protections of the war- Cooperative shareholders may the building is located; a description ranty of habitability implied in their deduct their proportionate share of of the building; a description of the proprietary lease, but condominium the cooperative’s mortgage interest units; a description of the common el- unit owners do not receive these expenses and real-estate taxes if the ements; a description of the common protections. cooperative derives 80 percent of its interest of each unit owner; and how annual gross income from the share- 56 Because condominium unit own- 45 the declaration may be amended. holders. Separating the commercial Floor plans of each unit must be fi led ers do not enter into a landlord-ten- space from the cooperative may allow with the declaration.57 ant relationship with the condomin- shareholders to benefi t from that tax ium association, condominiums do treatment.46 The Mortgage Forgive- Condominiums must have by- not appear in Housing Court unless a ness Debt Relief Act of 2007, recently laws that govern its administration unit owner leases a unit to a market- signed into law by President Bush, and which must be fi led with the dec- rate or rent-regulated subtenant or amends this tax provision by provid- laration. The by-laws must provide if, as shown below, a tenant remains ing two additional ways to qualify for the method of electing a board of in occupancy after a rental building for the tax treatment. Cooperatives managers and offi cers, the conduct converts to condominium ownership. may also now qualify if 80 percent of of meetings, and how condominium the corporation’s property is used for rules and regulations are made.58 IV. Housing Court residential purposes or if 90 percent The declaration, the by-laws, and the Housing Court has jurisdic- of the corporation’s expenditures are house rules govern the condominium tion over landlord-tenant disputes, to acquire or maintain the property and its unit owners. including nonpayment proceedings for the shareholders’ benefi t.47 Although the by-laws must (nonpayment of rent or maintenance), holdover proceedings (lease expira- III. Condominiums provide for the election of a board of managers to administer the building, tion or termination), lockout proceed- A condominium divides a in practice the board often delegates ings, Article 7-A proceedings (receiv- property into units owned in fee that authority to a management erships for distressed buildings), and simple and common elements owned HP proceedings (code violations). 48 company through a management in common-fee ownership. Unit agreement.59 owners hold title to their units in fee Disputes between cooperative simple absolute and an undivided, Condominium unit owners must boards and proprietary lessees ap- proportionate common interest in the pay “common charges” for the build- pear in Housing Court because of the common elements, which are owned ing’s maintenance, similar to coop- landlord-tenant relationship. Among with all other unit owners.49 erative shareholder’s maintenance.60 a great many examples, in Jones v. 63 In contrast to cooperatives, in which Surrey Co-op. Apartments, Inc., a A condominium association, shareholders contribute to the coop- cooperative board brought a nonpay- composed of the unit owners, may erative’s tax assessment, New York ment proceeding against a tenant for be incorporated pursuant to the City condominium unit owners pay failure to pay monthly maintenance Business Corporation Law or the charges. Also among a great many 50 their real estate taxes for their units Not-for-Profi t Corporation Law but directly to the New York City Depart- examples, in Gouverneur Gardens 51 64 may also remain unincorporated. ment of Finance.61 Also in contrast to Housing Corp. v. Lee, a cooperative If incorporated, the statute under cooperatives, no “blanket mortgage” board brought a holdover proceeding which it is formed will govern, unless may encumber an entire condomini- against a tenant after issuing a notice the governance violates the Condo- um building,62 and so condominium of termination in accordance with ap- 52 65 minium Law. Many provisions of unit owners need not contribute to a plicable lease provisions. these statutes, such as Business Cor- shared mortgage. Condominium unit poration Law § 717, which governs No landlord-tenant relationship 53 owners are not as bound together as exists between a condominium asso- fi duciary obligations, also apply cooperators. to unincorporated condominium ciation and its unit owners. Housing associations. A derivative action may Real Property Law Article 7 Court does not hear condominium be brought against an unincorporated landlord-tenant provisions apply to nonpayment and holdover disputes association.54 cooperatives but not condominiums. involving associations and unit owners.66

NYSBA N.Y. Real Property Law Journal | Spring 2008 | Vol. 36 | No. 2 47 Cases involving cooperatives by the parties and that the occupants of the warranty of habitability. . . .”77 were a part of Housing Court’s gen- of such premises shall not be subject- This special application of the war- eral docket until 1997, when the New ed to any conditions which would be ranty of habitability allows coopera- York State Unifi ed Court System cre- dangerous, hazardous or detrimental tives to act with the entire building’s ated a separate part for cooperative to their life, health or safety.”70 The best interests in mind.78 Ultimately, and condominium cases. Proceedings warranty is implied in all residential the abatement court must look to the involving units in cooperative or con- leases. Any waiver violates public proprietary lease to decide whose re- dominium buildings are heard in the policy. This protection for lessees is sponsibility it is to repair or maintain Coop and Condo Part,67 called Part C effectuated through rent abatements a condition that plausibly affects the in New York County. Every borough when a court fi nds that the premises’ warranty of habitability. has a separate coop and condo part condition violates the warranty. except Staten Island, which hears all No landlord-tenant relationship Cooperative shareholders are Housing Court cases in its All Pur- exists between a condominium unit cooperative “owners” represented by pose Part Y. owner and a condominium associa- the board, but the “proprietary lease tion. The warranty of habitability is Petitioners must identify a given to the tenant is not different inapplicable.79 A condominium unit proceeding involving units in coop- from any other type of lease and it owner may not withhold common erative or condominium buildings creates a landlord-tenant relationship charges to the condominium associa- by using a green “legalback.” If the between the stockholder and the co- tion because of building violations in petitioner fails to do so and the pro- operative corporation.”71 Thus, share- either the common areas or within a ceeding is referred to another judge, holders, as tenants, are entitled to unit.80 A landlord-tenant relationship that judge must refer the proceeding the warranty of habitability’s protec- is created when a unit owner leases to Part C upon determining that it tions.72 One court noted that “[w]hile a unit to a tenant. That tenant may involves a dispute in a cooperative or there is thus created the anomalous enforce the warranty of habitability condominium building. situation that one who is essentially against that unit owner.81 That tenant an owner (by virtue of his purchase does not have this relationship with Housing Court instituted the of shares) is in a sense suing himself, the condominium association and Coop and Condo Part in response to the situation is not vastly different cannot enforce the warranty of habit- signifi cant pressure from important from any stockholder who has occa- ability against it.82 real-estate interests that want Hous- sion to sue the corporation of which ing Court to handle cooperative and he is a pro rata owner by purchase of VI. HP Proceedings condominium cases effi ciently. The stock.”73 decision to create a separate court for The New York Legislature created cooperatives and condominium re- If the conditions in a tenant- the Housing Court in 1973 to adjudi- fl ects several considerations. It allows shareholder’s unit are “dangerous, cate actions and proceedings enforc- these cases to escape an otherwise- hazardous or detrimental to their life, ing federal, state, and local housing busy Housing Court docket. And it health or safety,” 74 that shareholder standards to assure a safe, habitable, allows, indeed compels, the presiding may be entitled to relief. Second-hand and plentiful housing stock in New judge to develop a special expertise in smoke infi ltrating a leased unit has York City. The Housing Court’s ju- cooperative and condominium law.68 been found to violate the warranty of risdiction includes nonpayment and As Vickie Chesler, executive editor of habitability.75 Excessive noise might holdover proceedings, which make The Cooperator, explained, “[C]o-op lead to a warranty-of-habitability up nearly the entire calendar, but and condominium issues are being violation if the noise deprives the ten- the primary mission of the Hous- developed on a case-by-case basis. In ant of “the essential functions that a ing Part (HP), a Part of the Housing co-ops, you’re dealing with securities, residence is supposed to provide.”76 Court (whose formal name is itself corporate boards and business issues. the Housing Part), is to hear housing The warranty of habitability ap- Sometimes, the housing court judges code proceedings, referred to as “HP plies to the landlord-tenant relation- 83 try to fi t those issues into landlord- proceedings” or “HP actions.” An ship created in a cooperative, but the tenant laws and precedents. And occupant, a tenant, a group of ten- cooperative’s hybrid nature requires usually, they just don’t fi t.”69 ants, or the New York City Depart- that the warranty apply slightly ment of Housing Preservation and V. The Warranty of differently than in a conventional Development (HPD) may bring an Habitability landlord-tenant relationship. For HP proceeding. The goal of the pro- instance, if “the conditions within the ceeding from the petitioner’s perspec- The warranty of habitability, cod- respondents’ apartments are a direct tive is to urge the court to exercise its ifi ed in Real Property Law § 235(b), result of a building-wide renovation equitable, injunctive jurisdiction to guarantees to a tenant that a leased project that the board of directors compel a property owner, broadly de- premises be “fi t for human habitation voted on and approved, it does not fi ned, to correct housing violations in and for the uses reasonably intended fall within the purview of a breach dwellings, to hold recalcitrant owners

48 NYSBA N.Y. Real Property Law Journal | Spring 2008 | Vol. 36 | No. 2 in civil and criminal contempt, and to proceeding. Those receiving govern- usual ken of the judiciary, at the least impose civil penalties on them.84 ment assistance, such as Social Ser- board members will possess experi- vices or Section 8 voucher recipients, ence of the peculiar needs of their The Housing Part’s subject-mat- face diffi culties withholding their building and its residents not shared ter jurisdiction includes cooperative rent. The indigent benefi t from the by the court.”95 The Court of Appeals apartments, including the coopera- court’s waiving fi ling fees89 and from believed that this rule appropriately tive’s common areas.85 Proprietary HPD attorneys’ help with cases they allows cooperative boards to manage lessees may bring an HP proceeding deem viable. Wealthier tenants also buildings effectively and effi ciently, against the cooperative to force the benefi t from suing for repairs. They while still protecting residents from cooperative to make repairs and cure might want to avoid withholding board decisions that do not rea- violations of the Housing Mainte- rent or maintenance due to potential sonably relate to the cooperative’s nance Code and similar safety codes. damage to their credit rating and the business.96 Most proprietary leases assign stigma attached to defending a non- In the Levandusky case, a share- responsibility for repairs to the pro- payment proceeding. holder had sought to make alterations prietary lessees if the problem arises to his unit, including moving a steam from within and remains within the VII. The Business-Judgment riser. The shareholder’s proprietary subject apartment, and to the coop- Rule lease required him to receive the erative corporation if the problem A. Generally cooperative board’s consent before comes from outside the apartment. making any alteration affecting the If a proprietary lessee brings an HP The business-judgment rule, building’s heating system. Despite proceeding against the cooperative, which applies to cooperatives, “pro- the shareholder’s contention that the cooperative may not assert as a hibits judicial inquiry into actions of the alteration would not harm the defense that the proprietary lease al- corporate directors ‘taken in good building’s plumbing, the board, after locates responsibility to the lessee to faith and in the exercise of honest consulting with an architect, decided fi x the complained-of condition. The judgment in the lawful and legiti- to deny the application. The parties HP judge will order the cooperative mate furtherance of corporate pur- 90 eventually litigated the dispute, with to make the repairs.86 If the share- poses.’” Business Corporation Law the shareholder asking the Court to holder is responsible for the costs § 717, also applicable to cooperatives, overturn the board’s refusal. of the repairs, the cooperative may states the rule somewhat differently, requiring directors to act “in good recover its costs in a plenary action. The Court of Appeals applied the faith and with that degree of care business-judgment rule.97 The Court The Housing Part also has juris- which an ordinarily prudent person found that the board acted within the diction over condominium common in a like position would use under procedures set forth in the propri- areas87 and to condominium units similar circumstances.”91 Cooperative etary lease in examining the share- that a unit owner leases. A condomin- boards’ actions and decisions need holder’s alteration plans. The share- ium unit owner may not bring an HP not be optimal. They must be made holder was unable to show that the proceeding against its condominium in accordance with the procedures board did not rely on its architect’s association for conditions within set forth in the governing documents advice or that any board member har- the condominium unit, because no and be made in good faith. Absent bored animosity against him. Even landlord-tenant relationship exists be- this showing, “judicial review is not if the shareholder had shown that tween the parties, and thus the war- available.”92 the building’s heating system would ranty of habitability is inapplicable.88 not be harmed and that the board’s A City code-enforcement agency may The business-judgment rule was decision was unreasonable, the Court bring a proceeding against a unit developed in the context of corporate would not intervene.98 owner or the condominium associa- governance. The Court of Appeals decided in Levandusky v. One Fifth tion to correct violations, even if no The Levandusky Court stressed Avenue Apartment Corp.93 to apply landlord-tenant relationship exists. that the business-judgment rule’s that rule to cooperatives. The Court application to cooperatives might Although every part of the Hous- developed a rule to review corpo- differ from its application to more ing Court has code-enforcement rate behavior judicially because “a conventional corporations. The Court jurisdiction—for instance, a tenant- cooperative corporation is—in fact anticipated this difference because respondent may invoke code viola- and function—a corporation, acting the rule’s development in the conven- tions as a defense to paying rent in through the management of its board tional corporate context responded a nonpayment proceeding and as a of directors, and subject to the Busi- to “self-dealing and fi nancial self- defense to paying use and occupancy ness Corporation Law.”94 The Court aggrandizement,” which, in its in a holdover proceeding—there are also found that although “decisions view, would not be a major problem a number of advantages for tenants of a cooperative board do not gener- among directors of not-for-profi t or proprietary lessees to bring an HP ally involve expertise beyond the cooperatives.99

NYSBA N.Y. Real Property Law Journal | Spring 2008 | Vol. 36 | No. 2 49 One motive to apply the busi- defendants’ membership in a club applies in Housing Court in holdover ness-judgment rule to cooperative in which shareholders used summer proceedings when a shareholder’s board actions is to protect hon- cottages was terminated due to rule lease is terminated for objectionable estly made decisions from lengthy violations. Because they were unable conduct. litigation. New York courts have to show that the board “deliberately helped effectuate that purpose by singled them out for harmful treat- B. Objectionable Conduct not hesitating to grant summary- ment or selectively enforced West Most proprietary leases allow judgment motions to resolve these Oak’s bylaws and regulations,” the a cooperative board to terminate a disputes quickly. In Sherry Associ- business-judgment rule applied, and proprietary lease for objectionable ates v. Sherry-Netherland, a group of summary judgment was awarded.106 conduct. Although RPAPL § 711 minority shareholders sued their requires a landlord to prove with The business-judgment rule cooperative corporation, a dual- competent that the occu- might help shield cooperative boards purpose residence and hotel, alleging pant’s conduct was objectionable, from some litigation, but it will not that it discriminated against share- courts apply the business-judgment shield actions taken in confl ict with a holders who owned hotel units.100 rule when cooperative shareholders , such as a proprietary lease The Appellate Division held that the challenge lease terminations. As long or the by-laws. In Whalen v. 50 Sutton governing documents entrusted the as the shareholder is unable to show Place South Owners, Inc., after con- management of the hotel units to the the board acted outside its authority, cluding an alteration agreement with board and that the plaintiffs did not in bad faith, or without honest judg- a resident, the board revoked its con- overcome the presumption that the ment, a board’s determination that an sent to the renovations.107 In refusing board acted in good faith and in the occupant’s conduct was objectionable to apply the business-judgment rule, exercise of honest judgment.101 The will stand.113 the court wrote that “while it may plaintiffs alleged that the hotel units be good business judgment to walk could have been more profi table. That The seminal Pullman case arose away from a contract, this is no de- allegation did not defeat the business- when one shareholder circulated fl y- fense to a breach of contract claim.”108 judgment rule.102 ers throughout the building accusing one long-time resident of being a Similarly, the business-judgment Courts have also been quick to “psychopath,” alleging that his wife rule will not protect a board that grant summary judgment in cases had intimate relations with the board violates a proprietary lease’s express challenging the promulgation of president and had cut his telephone provision.109 The business-judgment rules clearly within the board’s wire.114 The problem shareholder rule is inapplicable if a board acts authority. In Jacobs v. 200 East 36th performed renovations in his apart- without express authority in a pro- Owner’s Corp., a resident challenged ment without the board’s consent prietary lease, for instance in impos- the “promulgation of a rule prohibit- and on weekends. In accordance with ing a sublet surcharge. In one case, ing deliveries of food by placing the the proprietary lease, the coopera- the board acted outside its authority food packages on the fl oor of the tive board convened, with proper and instead should have followed elevator and sending the elevator to notice, a special meeting, where more “the proper procedures to effectuate shareholders’ fl oors and requiring than the necessary two-thirds of the an amendment of the Proprietary residents to pick up food deliveries shareholders voted to terminate the Lease authorizing such a sublet in the lobby.”103 Finding the record shareholder’s lease due to his objec- surcharge.”110 devoid of proof that the action did tionable conduct. not further safety and cleanliness, the The business-judgment rule will The Court of Appeals in Pullman court granted the managing agent’s not insulate actions taken contrary 104 applied the business-judgment rule summary-judgment motion. Simi- to public policy or law. Unreason- to the shareholder’s challenge and larly, a cooperative’s summary mo- able restraints on alienation, such as held that the shareholders terminated tion was granted when the plaintiff, a requirement that shareholders end his proprietary lease in accordance challenging the adoption of a rule by litigation against the board111 or to with the procedures set forth in the the cooperative board expanding the sell their shares above a minimum set cooperative’s governing documents. hours of usage of the common roof price to gain the board’s consent to Although the Court found RPAPL garden adjacent to a penthouse apart- transfer their shares,112 violate public § 711’s requirement for “competent ment, could not “establish that the policy and render the business-judg- evidence” relevant, it deferred to the board was not acting for the purposes ment rule inapplicable. of the cooperative, within the scope shareholder vote and “stated fi ndings of its authority and in good faith.”105 Most issues involving coopera- as competent evidence that the tenant tives and the business-judgment rule is indeed objectionable under the stat- Courts have also granted sum- arise in Supreme Court, not Housing ute.”115 Under Pullman, to challenge mary judgment to challenges against Court. We discuss the concept here a lease termination for objectionable enforcing cooperative rules. In because the business-judgment rule conduct successfully, the shareholder W.O.R.C. Realty Corp. v. Carr, the

50 NYSBA N.Y. Real Property Law Journal | Spring 2008 | Vol. 36 | No. 2 must show that the board’s decision not require such a meeting, the court pet openly and notoriously for three does not deserve the business-judg- found.123 months, and the owner or its agent ment rule’s protections.116 knows of it and does not commence The Appellate Division, First a summary proceeding against the In 13315 Owners Corp. v. Ken- Department, recently applied the tenant, the owner waives its right to nedy, a cooperative board, rather business-judgment rule and affi rmed enforce a no-pet lease provision. The than the shareholders, sought to a Supreme Court decision to termi- Pet Law imputes to the owner the terminate a lease on objectionable nate a proprietary lease for objec- knowledge of employees, such as a conduct grounds.117 Without decid- tionable conduct.124 In 1050 Tenants superintendent, doorman, or guard. ing whether the Pullman framework Corp. v. Lapidus, the shareholder had If a building employee knows for was appropriate for a board decision, violated a stipulation entered into three months that the resident had the court found on the facts that the with the cooperative and installed an a pet, the cooperative may not force board would not have been entitled air-conditioning system that malfunc- the tenant to move or to get rid of to deference.118 The board had acted tioned and damaged a neighboring the pet. The Pet Law’s purpose is to outside its authority; it had not been apartment. The shareholder then force owners to enforce promptly a properly elected. The board also refused to remove the system.125 no-pets-allowed rule or to waive the acted in bad faith when it silenced the The board of directors notifi ed the rule.128 shareholder’s attorney at the meeting shareholder of a special meeting to held to determine whether the share- consider a resolution to terminate Many cooperatives and condo- holder had acted objectionably.119 his lease. The shareholder’s attorney miniums prohibit residents from The court did not apply the business- appeared on his behalf. The board of harboring pets in the unit.129 The Pet judgment rule. It denied the coopera- directors voted unanimously in favor Law applies to cooperatives seeking tive’s summary-judgment motion of terminating the lease. Sharehold- to terminate a tenant’s proprietary and adjourned the case for trial to ers later overwhelmingly ratifi ed the lease for violating a no-pet clause.130 determine whether the board could decision.126 The court applied the The Second Department applies the prove by competent evidence that the business-judgment rule and upheld Pet Law defense to condominiums,131 shareholder’s conduct was objection- the Supreme Court’s fi nal judgment while the First Department does able.120 The preceding immediately of possession.127 not.132 settled after that ruling. Whether a board or shareholder IX. The Martin Act That same court decided in determination is entitled to business- London Terrace Towers, Inc. v. Davis judgment deference is relevant The Martin Act governs the what it declined to decide in Kennedy: only if the board seeks a possessory offering for sale of condominium 133 that a board decision to terminate a judgment under business-judgment and cooperative units. Sponsors lease due to objectionable conduct deference. If a cooperative seeks to of conversions are required to sub- deserves Pullman deference. Finding evict for objectionable conduct or mit to the state Attorney General the Court of Appeals’ dicta in Pull- some other lease or statutory viola- an “offering plan” that provides man persuasive, the court granted the tion and goes to trial with proof of information about the contemplated board summary judgment after it ap- that conduct or violation, a share- offering, including “detailed terms of plied the business-judgment rule to a holder may not defend on the ground the transaction; a description of the board decision made within its scope that the cooperative acted in bad faith property, the nature of the interest, of authority, in good faith, and after or outside its authority, or without and how title thereto is to be held; the offering the shareholder notice and giving the shareholder notice and an gross and net income for a reason- an opportunity to be heard, the twin opportunity to be heard before the able period preceding the offering pillars of due process.121 proceeding began. The only issue in where applicable and available; the a non-Pullman holdover proceeding current gross and net income where 134 In determining whether the brought by a cooperative corporation applicable and available.” The board has acted within its author- against a shareholder is whether the Act authorizes the Attorney General ity, courts look to the cooperative’s board can prove the conduct or viola- to promulgate disclosure through 135 governing documents. The court in tion with competent evidence and regulation. Carnegie Hill 87th Street Corp. v. Heller what defenses the shareholder can The offering plan is submitted to refused to vacate a default judgment bring to bear. against a tenant unable to present the Attorney General, but the At- 122 torney General does not necessarily a meritorious defense. Although VIII. The Pet Law the tenant had not been allowed an review and approve plans. Rather, the opportunity to defend herself in a Under New York City Admin- Attorney General accepts the plans special meeting of the board, the co- istrative Code § 27-2009.1, known for fi ling and reviews the plans to operative’s governing documents did as the Pet Law, if a tenant harbors a ensure that the required disclosures

NYSBA N.Y. Real Property Law Journal | Spring 2008 | Vol. 36 | No. 2 51 are provided. Generally, if an offer- thermore, “an owner of a unit or of of reasonable access to the owner, or ing plan is defi cient, the sponsors the shares allocated thereto may not a similar breach by the tenant of his are merely required to disclose that a commence an action to recover pos- obligations.”154 Senior citizens and defi ciency exists rather than to correct session of a dwelling unit from a non- disabled tenants are protected from that defi ciency.136 The Martin Act purchasing tenant on the grounds unconscionable rent increases.155 does not provide a private cause of that he seeks the dwelling unit for the actions for parties injured by defi cient use and occupancy of himself or his As in non-eviction plans, non- offering plans, although a common- family.”145 However, non-purchasing purchasing tenants under an eviction law fraud action might lie.137 tenants may be evicted “for non-pay- plan who were previously subject ment of rent, illegal use or occupancy to rent regulation remain subject to 156 A. Conversion to Condominium of the premises, refusal of reason- them. or Cooperative Ownership able access to the owner or a similar 2. Tenants in Occupancy Under the Martin Act breach by the non-purchasing tenant The Martin Act provides ad- of his obligations to the owner of the Because tenants in occupancy are ditional requirements to convert dwelling unit or the shares allocated afforded an insider’s purchase op- a rental building to condominium thereto.”146 tion and protections against eviction, or cooperative ownership.138 The it is crucial to determine who falls Non-purchasing tenants subject purpose of those requirements is to within that group. Much litigation to rent regulation before an offering provide for an orderly conversion has revolved around the question, plan is fi led continue to enjoy regula- of those buildings while seeking to and numerous cases have sought to tions after fi ling.147 The Martin Act preserve affordable housing and ame- answer it. protects free-market non-purchasing liorate the disruption of conversion tenants from “unconscionable in- In De Kovessey v. Coronet Proper- on the lives and welfare of affected creases beyond ordinary rentals for ties Co., the Court of Appeals ad- tenants.139 comparable apartments during the dressed who qualifi es as a tenant 148 in occupancy.157 In that case,158 the 1. Non-Eviction Plan or Eviction period of their occupancy,” which sponsor of a cooperative conversion Plan has been interpreted by the Appel- late Division, Second Department, as plan offered tenants an insider price. If a sponsor seeks to convert a prohibiting landlords from demand- Before accepting, one tenant died, building from rental units to con- ing above-market rents from non- and the estate sought to exercise the dominium or cooperative owner- purchasing tenants.149 This protection right. The court held that to uphold ship, the offering plan must include is not a form of rent-regulation and the estate’s right to exercise an option whether the conversion is being done does not prevent large rent increases would violate the purposes of the pursuant to an “eviction plan” or a consistent with market conditions.150 Martin Act, which protects tenants “non-eviction” plan.140 against dislocation while allowing A non-eviction plan may not be owners to develop their property. The A non-eviction offering plan will amended into an eviction plan.151 Court saw no reason to encumber not be deemed effective until “writ- further an owner’s rights to give an ten purchase agreements have been On the other hand, an eviction estate a valuable purchase option, executed and delivered for at least plan is not effective until 51 percent while not protecting an actual tenant fi fteen percent of all dwelling units in of the development’s units are pur- from eviction.159 the building”141 by “bona fi de tenants chased by a “bona fi de tenant” under in occupancy or bona fi de purchasers a good-faith, non-discriminating In Manolovici v. 136 East 64th who represent that they intend that offer.152 Street Associates,160 the Court of Ap- they or one or more members of their peals interpreted the phrase “tenant As suggested by its name, evic- immediate family intend to occupy in occupancy.” In that case, Mr. and tion plans offer few protections the unit when it becomes vacant.”142 Mrs. Manolovici were undergoing against eviction to non-purchasing Tenants in occupancy when the marital problems, and Mr. Manolovici tenants. The Martin Act prohibits Attorney General accepts the offer- voluntarily vacated the apartment, in eviction proceedings against eviction ing plan are entitled to a good-faith, which his wife remained with their plan non-purchasing tenants until the non-discriminatory offer to purchase children. During this arrangement, later of the expiration of the tenant’s their unit.143 the Attorney General accepted an lease agreement or a three-year pe- offering plan for conversion for fi ling. A non-eviction plan is so-called riod after the offering plan becomes The offering plan provided a favor- because sponsors may not commence effective.153 Non-purchasing tenants able “insider’s price” for the tenant eviction proceedings “against non- who are senior citizens or disabled in occupancy of the Manolovici’s purchasing tenants for failure to pur- are not subject to eviction, except for apartment. Mrs. Manolovici sued for chase or any other reason applicable “non-payment of rent, illegal use or declaratory relief to be named the to expiration of tenancy.”144 Fur- occupancy of the premises, refusal sole tenant in occupancy.161

52 NYSBA N.Y. Real Property Law Journal | Spring 2008 | Vol. 36 | No. 2 The Court of Appeals denied that their 1992 lease. The parties disputed possession of the shares. That relief is relief, holding that Mr. Manolovici whether the tenants were entitled to unavailable in Housing Court, which was entitled to share the purchase “non-purchasing tenant” status and, awards possession of the premises, option. The Court found that the thus, to protections against eviction. rent, and use and occupancy but has “critical date” to determine who is The landlord, while conceding that no jurisdiction to allocate shares. the “tenant in occupancy” is the date those tenants had not purchased the offering plan was accepted for shares of the cooperative, argued that Cooperatives and condominiums fi ling.162 The Court determined that they were not entitled to “non-pur- have a number of mechanisms that although he was not actually living chasing tenant” status because they might afford relief. in the apartment, Mr. Manolovici took possession after the 1987 conver- First, the proprietary lease might maintained a “suffi cient nexus with sion of the building and so could not require the proprietary lessee to sell 170 the apartment as of the critical date,” be tenants in occupancy. its shares to the cooperative upon qualifying him to a share in the pur- 173 The Appellate Term, Second termination of the lease. chase option.163 Department, found in Paikoff that the Second, the share certifi cates In 322 West 57th Owner v. Pen- tenants were entitled to the Martin might provide that the cooperative hurst, the Housing Court applied the Act’s protections. According to the may obtain a over the shares “suffi cient nexus” test to determine court, that statute protects tenants should the tenant fail to pay main- whether tenants were entitled to from dislocation as building owners’ tenance.174 The cooperative does not statutory protections against evic- economic incentives change. When automatically obtain a lien. 175 New 164 tion. In that case, a number of ten- operating a rental building, an owner York law does not recognize a “land- ants’ leases expired after the owner’s has an incentive to retain an unobjec- lord’s lien.” Rather, a lien must be offering plan for conversion to con- tionable market-rate paying tenant. created under an agreement between dominium ownership was submitted Sometimes the unit is worth more the parties.176 If properly created, to the Attorney General but had not as a condominium or cooperative, and if the cooperative complies with yet been accepted for fi ling. When and the owner is then incentivized to U.C.C. Article 9, the shares may be the owner began summary holdover evict the tenant and sell the unit. The foreclosed upon in a nonjudicial proceedings against the tenants, the Martin Act protects the tenant from sale.177 tenants claimed protections as non- this economic change and, thus, ac- purchasing tenants under a presently cording to the court, there can “be no Many shares are also pledged as accepted offering plan.165 valid distinction between tenants in security for a loan taken to purchase possession at the time of the conver- the shares. Often, a cooperative seek- The Penhurst Court held that, sion and those who rent from spon- ing maintenance and a bank seeking despite the expiration of their leases, sors after the conversion.”171 mortgage payments both seek to the tenants were entitled to protection enforce their respective . In ALH under the Martin Act as non-purchas- Courts have extended the Mar- Properties Ten, Inc. v. 306-100th Street ing tenants. The tenants were occu- tin Act’s non-eviction protections to Owners Corp.,178 a cooperative issued pying the units and so had a “suf- family members of deceased rent- shares stating “Corporation, by the 166 fi cient nexus” to the apartments. stabilized tenants. In Langdale Owners terms of said By-laws and the pro- 172 Because the owner had not yet been Corp. v. Lane, due to the statute’s prietary lease, has a fi rst lien on the granted a judgment of possession, the purpose of protecting families from shares represented by the certifi cate landlord-tenant relationship had not dislocation and to similar interpreta- for all sums due and to become due 167 been extinguished. Even though tions of prior conversion statutes not under said proprietary lease.”179 The the respondents were “holdover ten- addressed legislatively in the Martin Court of Appeals held that even if the ants,” they were afforded the status Act, the Appellate Term, Second De- cooperative’s “fi rst lien” were valid, it of non-purchasing tenants, and the partment, held that a family member applied only to the maintenance due 168 proceedings were dismissed. The of a deceased tenant was entitled to a under the lease.180 The Court gave Penhurst case is currently on appeal rent-stabilized lease renewal. priority to the mortgagor’s lien for before the Appellate Term. A decision the non-maintenance obligations.181 is anticipated shortly. X. Recovery of Unit and Shares Similarly, in Bankers Trust Co. v. Some courts have further extend- Board of Managers of Park 900 Condo- Should a cooperative board suc- ed the Martin Act’s protections to ten- minium,182 a condominium asserted cessfully pursue a summary pro- ants who come in possession after the that it had a “fi rst lien” on unpaid ceeding in Housing Court and evict “critical date” of the offering plan’s common charges. The First Depart- 169 a tenant for its default in paying of fi ling. In Paikoff v. Harris, a landlord ment held that the bank’s mortgage maintenance, or after the expiration commenced a holdover proceeding held priority over the asserted lien on or termination of a lease, the coopera- to evict tenants after the expiration of the common charges.183 tive does not automatically regain

NYSBA N.Y. Real Property Law Journal | Spring 2008 | Vol. 36 | No. 2 53 Third, upon receiving a money against present or former directors, money disputes involving coopera- judgment for nonpayment of main- offi cers, or shareholders, or if the tives and condominiums. Coopera- tenance, a cooperative may obtain a action is brought for equitable relief, tives and condominiums are unique judicial lien under CPLR 5234. The a six-year statute of limitations ap- forms of property ownership; dis- judgment may be satisfi ed upon fore- plies.192 If the action is brought for putes over cooperatives and condo- closing the former tenant’s shares.184 money damages, a three-year statute miniums involve unique and heavily of limitations is applicable.193 If the litigated legal issues, distinct from XI. Miscellaneous Topics action seeks to challenge a board those arising in more conventional A. Succession Rights in determination in an Article 78, the ownership and leasing arrangements. Cooperatives statute of limitations is a mere four This article has described issues that months.194 A rent claim or counter- arise often in the Coop and Condo Upon the death of a proprietary claim for abatement is subject to a Part. lessee, disputes often arise about six-year statute of limita- who may properly take possession tions, although the doctrine of laches Endnotes of the apartment. Possession of the can affect the possessory portion of a decedent’s shares does not necessar- judgment against a shareholder. 1. N.Y. BUS. CORP. LAW §§ 401-409. ily create an entitlement to occupy 2. N.Y. NOT-FOR- CORP. LAW §§ the apartment.185 One must examine C. Attorney Fees 401-406. the proprietary lease and by-laws to Although most proprietary leases 3. N.Y. COOP. CORP. LAW §§ 10-19. determine succession rights. require a shareholder to pay the coop- 4. VINCENT DILORENZO, NEW YORK CONDOMINIUM AND COOPERATIVE LAW § 3:9 In Chapman v. 2 King Street Apart- erative’s attorneys’ fees in the event (2d ed. 2007). 186 of a dispute, courts enforce those ments Corp., the proprietary lease 5. Id. at § 3:10; N.Y. BUS. CORP. LAW § 402(c). provided that the cooperative board provisions only when the cooperative 6. DILORENZO, supra note 4, at § 3:10. could not unreasonably withhold is the prevailing party.195 A further its consent to an of the consequence of the Real Property 7. Id. lease and shares to a “fi nancially Law’s application to cooperatives 8. EVA TALEL & DALE DEGENSHEIN, 2006-2007 is that attorney-fee provisions in LEGAL UPDATE FOR COURT ATTORNEYS: responsible” family member of the COOPERATIVES AND CONDOMINIUMS— 187 decedent. The Court reviewed the proprietary leases are made recipro- SIGNIFICANT DECISIONS AND LEGAL board’s decision to refuse the de- cal. Shareholders may collect attorney PRINCIPLES 1 (unpublished CLE cedent’s daughter’s application on fees if they are the prevailing party.196 manuscript for N.Y.S. Judicial Inst.). the ground that she was not fi nan- Shareholders are also protected in 9. N.Y. BUS. CORP. LAW § 626; TALEL & cially responsible and found that the many leases by language requiring DEGENSHEIN, supra note 8, at 1. board acted reasonably.188 In Joint the shareholder to be in “default” 10. DILORENZO, supra note 4, at § 1:2. Queensview Housing Enterprise, Inc. of the lease for the cooperative to 11. Id. 197 v. Balogh, the cooperative’s by-laws recover for attorneys’ fees. 12. DANIEL FINKELSTEIN & LUCAS A. FERRARA, provided that an inheritor of shares LANDLORD AND TENANT PRACTICE IN NEW D. Possessory Judgments was required to receive permission YORK (2008). from the board before occupying In the rent-regulated context, 13. DILORENZO, supra note 4, at § 1:2. the apartment.189 After inheriting the general rule is that a possessory 14. CARLYN MILLAR ROSS, CONDOMINIUMS AND shares and taking possession of the judgment may not include additional COOPERATIVE APARTMENTS § 148 (2d ed. 2007). apartment, the defendant applied to charges above the legal regulated the board for permission to do so.190 rent, such as attorney fees or other 15. DILORENZO, supra note 4, at § 3:13. After the board refused permission costs.198 In cooperatives, a possessory 16. Id. at § 1:2. and the defendant refused to vacate judgment may include attorney fees 17. Id. at § 3:13. the apartment, the board sued. The and other costs, if they are defi ned 18. TALEL & DEGENSHEIN, supra note 8, at 2.

Court applied the business-judgment as added or additional rent in the 19. N.Y. PRIV. HOUS. FIN. LAW § 573. proprietary lease. A cooperative may rule and refused to order the board to 20. Id. § 573(3)(a). accept the defendant’s application.191 not secure a possessory judgment, or 21. Id. § 573(3)(b). even bring a summary proceeding, B. Statute of Limitations to replenish a security deposit or an 22. Id. § 573(3)(c). Considerations escrow account.199 23. See E. 11th St. HDFC v. Grimmet, 181 A.D.2d 488, 489, 581 N.Y.S.2d 24, 25 (1st Claims involving cooperatives XII. Conclusion Dep’t 1992) (mem.); 50 W. 11th St. HDFC are subject to a range of different v. Ali, 13 Misc. 3d 1237(A), 831 N.Y.S.2d statutes of limitations, depending on The New York City Housing 353, 2006 WL 3342679, N.Y. Slip Op. the claim’s nature. When the action is Court’s Coop and Condo Part han- 52150(U) (Hous. Part Civ. Ct. N.Y. County 2006). brought on the corporation’s behalf dles a broad array of possessory and

54 NYSBA N.Y. Real Property Law Journal | Spring 2008 | Vol. 36 | No. 2 24. RENT STABILIZATION LAW (N.Y.C. ADMIN. 43. 4 Misc. 3d 804, 809, 781 N.Y.S.2d 207, 210 64. 2 Misc. 3d 525, 526, 769 N.Y.S.2d 829, 830 CODE) § 26-504(a); 546 W. 156th St. HDFC (Hous. Part Civ. Ct., N.Y. County 2004) (Hous. Part Civ. Ct., N.Y. County 2003) v. Smalls, 43 A.D.3d 7, 11, 839 N.Y.S.2d 62, (Gerald Lebovits, J.). (Gerald Lebovits, J.). 66 (1st Dep’t 2007). 44. See generally RICHARD SIEGLER, The 65. See ROSS, supra note 14, at § 149. 25. N.Y. COMP. CODES. R. & REGS. tit. 9, § Feasibility of Co-Op to Condo Conversion, 66. DILORENZO, supra note 4, at § 11:9; 2520.11(j). N.Y.L.J., Mar. 5, 1997, at 3, col. 1; RICHARD FINKELSTEIN & FERRARA, supra note 12, § SIEGLER, Techniques for the 80/20 Test of 26. 43 A.D.3d at 9, 839 N.Y.S.2d at 64. 2:133, at 2-49. IRC § 216—Part I, N.Y.L.J., May 5, 1999, 27. Id. at 8-10, 839 N.Y.S.2d at 64-66. at 3, col. 1 [hereinafter “Techniques for 67. Report of the Civil Court of the City of 28. Id. at 12, 839 N.Y.S.2d at 66. the 80/20 Test”]; STUART SAFT, Commercial New York, Jan. 1, 1997–Dec. 31, 2006, A Real Estate Forms 27:8 (3d 2007); Xamaka, Decade of Change and Challenge in “The 29. Grimmet, 181 A.D.2d at 489; Ali, 13 Misc. Inc. v. 166 E. 61st St. Assocs., N.Y.L.J., People’s Court” 1997-2006, at 9. 3d 1237(A), 831 N.Y.S.2d 353, 2006 WL Nov. 17, 1999, at 26, col. 3 (Sup. Ct. N.Y. 3342679. 68. JAY ROMANO, Your Home; Co-op Cases Are County). Getting Own Court, N.Y. TIMES, Oct. 26, 30. Grimmet, 181 A.D.2d at 489, 581 N.Y.S.2d 45. See 26 U.S.C. § 216; TALEL & DEGENSHEIN, 1997, at S. 11, at 3. at 25. supra note 8, at 1; see RICHARD SIEGLER 69. Id. 31. Id., 581 N.Y.S.2d at 26. & EVA TALEL, Dealing with the 80/20 Test, N.Y.L.J., July 5, 2006, at 3, col. 1. 70. N.Y. REAL PROP. § 235(b). 32. W. 149th St. HDFC v. Rodriguez, 5 Misc. 3d 1020(A), 799 N.Y.S.2d 165, 2004 46. See generally RICHARD SIEGLER, Cooperatives 71. Suarez v. Rivercross Tenants Corp., 107 WL 2752468, at *2 2004 N.Y. Slip Op. and Condominiums: Dealing with the 80/20 Misc. 2d 135, 137, 438 N.Y.S.2d 164, 166 51471(U), *2 (Hous. Part Civ. Ct., N.Y. Test, N.Y.L.J., July 5, 2006, at 3, col. 1; (1st Dep’t 1981) (per curiam). County Sept. 29, 2004) (Gerald Lebovits, SIEGLER, Techniques for the 80/20 Test, supra 72. Id. at 139, 438 N.Y.S.2d at 167. J.); 757 E. 169th St. HDFC v. Haney, 171 note 44. 73. Id., 438 N.Y.S.2d at 167. Misc. 2d 965, 966, 656 N.Y.S.2d 92, 93 47. PUB. L. 110-142, § 4(a), 121 STAT. 1804. (Hous. Part Civ. Ct., N.Y. County 1996). 74. Id. at 138, 438 N.Y.S.2d at 166. 48. DILORENZO, supra note 4, at § 3:1. 33. Grimmet, 181 A.D.2d at 489, 581 N.Y.S.2d 75. Poyck v. Bryant, 13 Misc. 3d 699, 701, 820 at 24. 49. Id.; TALEL & DEGENSHEIN, supra note 8, at N.Y.S.2d 774, 766 (Civ. Ct., N.Y. County 29. 2006). 34. Id. at 489, 581 N.Y.S.2d at 26. 50. N.Y. BUS. CORP. LAW § 401 et seq.; N.Y. 76. Kaniklidis v. 235 Lincoln Place Hous. Corp., 35. Id. at 489, 581 N.Y.S.2d at 25; Marcus NOT-FOR-PROFIT CORP. L. § 401 et seq.; 305 A.D.2d 546, 547, 759 N.Y.S.2d 389, 389 Garvey Park Homes Hous. Dev. Fund Corp. DILORENZO, supra note 4, at § 3:2. (2d Dep’t 2003). v. Franco, 12 Misc. 3d 840, 815 N.Y.S.2d 807 (Hous. Part Civ. Ct., N.Y. County 51. DILORENZO, supra note 4, at § 3:2; TALEL & 77. 315-321 Eastern Parkway Dev. Fund Corp. 2006). DEGENSHEIN, supra note 8, at 28. v. Wint-Howell, 9 Misc. 3d 644, 648, 802 N.Y.S.2d 892, 895 (Hous. Part Civ. Ct., 36. 167-169 Allen St. HDFC v. Ebanks, 22 52. DILORENZO, supra note 4, § 3:2. Kings County 2005). A.D.3d 374, 375, 802 N.Y.S.2d 650, 651 53. Id.; see also, e.g., Bd. of Managers v. (1st Dep’t 2005) (mem.). Fairway at N. Hills, 193 A.D.2d 322, 324, 78. Id. at 648, 802 N.Y.S.2d at 896. 37. Id. at 375, 802 N.Y.S.2d at 652. 603 N.Y.S.2d 867, 869 (2d Dep’t 1993) 79. Frisch v. Bellmarc Mgmt., 190 A.D.2d 383, (noting that although the Condominium 385, 597 N.Y.S.2d 962, 963 (1st Dep’t 38. See Davis v. Starr, 88 Misc. 2d 210, 213, 387 Act is silent, fi duciary duty akin to that 1993); Linden v. Lloyd’s Planning Service, N.Y.S.2d 351, 354 (Sup. Ct., N.Y. County imposed in B.C.L. § 717 is imposed on 299 A.D.2d 217, 218, 750 N.Y.S.2d 20, 1975) (noting that N.Y.C. Administrative the initial board of managers); Schoninger 21 (1st Dep’t 2002) (mem.), lv. denied, 99 Code requires only a “public hearing” for v. Yardarm Beach Homeowners’ Assoc., N.Y.2d 509, 790 N.E.2d 274, 760 N.Y.S.2d rent increases). 134 A.D.2d 1, 2, 523 N.Y.S.2d 523, 524 100 (2003). 39. Wong v. Gouverneur Gardens Hous. Corp., (2d Dep’t 1987) (business judgment 80. Bd. of Managers of First Ave. Condo. v. 308 A.D.2d 301, 304, 764 N.Y.S.2d 53, rule applies to actions of board of Shandel, 143 Misc. 2d 1084, 1087, 542 57 (1st Dep’t 2003) (mem.) (holding unincorporated condominium); TALEL & N.Y.S.2d 466, 468 (Hous. Part Civ. Ct., that HPD has primary jurisdiction DEGENSHEIN, supra note 8, at 28. N.Y. County 1989). over eviction of Mitchell-Lama tenant); 54. Caprer v. Nussbaum, 36 A.D.3d 176, 187, 81. Sneddon v. Greene, 17 Misc. 3d 1, 4, 844 Gouverneur Gardens Hous. Corp. v. Lee, 825 N.Y.S.2d 55, 64 (2d Dep’t 2006); TALEL N.Y.S.2d 575, 577 (App. Term 2d Dep’t 2 Misc. 3d 525, 527, 769 N.Y.S.2d 829, & DEGENSHEIN, supra note 8, at 28. 831 (Hous. Part Civ. Ct., N.Y. County 9th & 10th Jud. Dists. 2007) (mem.). 55. DILORENZO, supra note 4, at § 3:3. 2003) (Gerald Lebovits, J.) (HPD issued 82. McCarthy v. Bd of Managers of Bromley certifi cate of eviction); ANDREW SCHERER, 56. Id. at § 3:3; N.Y. REAL PROP. § 339-n. Condo., 271 A.D.2d 247, 247, 706 N.Y.S.2d RESIDENTIAL LANDLORD-TENANT LAW IN 57. Id. at § 3:4; N.Y. REAL PROP. § 339-p. 104, 105 (1st Dep’t 2000) (mem). NEW YORK § 6:12, at 366 (2007-2008 ed.). 58. DILORENZO, supra note 4, at § 3:5. 83. See Mark C. Rutzick & Richard L. Huffman, 40. Bedford Gardens Co., LP v. Jacobowitz, 29 The New York City Housing Court: Trial A.D.3d 501, 502, 815 N.Y.S.2d 149, 151 (2d 59. Id. at § 3:7. and Error in Housing Code Enforcement, 50 Dep’t 2006) (mem.). 60. SCHERER, supra note 39, at 388, § 6:75. N.Y.U. L. Rev. 738, 749-58 (1975). 41. Lindsay Park Hous. Corp. v. Grant, 190 61. TALEL & DEGENSHEIN, supra note 8, at 29. 84. Civ. Ct. Act § 110(a)(7) (giving Housing Misc. 2d 777, 777, 740 N.Y.S.2d 552, 552 Court jurisdiction to order violations 62. N.Y. REAL PROP. § 339-r (when fi rst (App Term 2d Dep’t 2d & 11th Jud. Dists. corrected); HMC (Admin. Code) §§ conveyed); N.Y. REAL PROP. § 339-1 2001) (mem.); Yorkville Towers Assocs. v. 27-2115(i), (j). Mourino, N.Y.L.J., June 9, 1997, at 29, col. (subsequent liens); DILORENZO, supra note 3 (App Term 1st Dep’t) (per curiam). 4, at § 1:2. 85. Kahn v. 230-79 Equity Inc., 32 H.C.R. 233A, 2 Misc. 3d 140(A), 784 N.Y.S.2d 921, 63. 263 A.D.2d 33, 35, 700 N.Y.S.2d 118, 120 42. 2 N.Y.3d 472, 475, 812 N.E.2d 298, 299, 2004 N.Y. Slip Op. 50302(U), *2, 2004 WL (1st Dep’t 1999). 779 N.Y.S.2d 808, 809 (2004). 869746, at *2, 2004 N.Y. Misc. LEXIS 409,

NYSBA N.Y. Real Property Law Journal | Spring 2008 | Vol. 36 | No. 2 55 at *1 (App. Term 1st Dep’t Apr. 8, 2004) 102. Id. at 15, 708 N.Y.S.2d at 106. 129. See, e.g., Bd. of Managers v. Lamontanero, (per curiam) (cooperative corporations); 103. Jacobs v. 200 E. 36th Owners Corp., 281 206 A.D.2d 340, 341, 616 N.Y.S.2d 744, 745 McMunn v. Steppingstone Mgt. Corp., 131 A.D.2d 281, 281, 722 N.Y.S.2d 137, 137 (2d Dep’t 1994) (mem.) (condominium Misc. 2d 340, 343, 500 N.Y.S.2d 219, 221 (1st Dep’t 2000) (mem.). by-laws prohibit pets); Linden Hill No. (Hous. Part Civ. Ct., N.Y. County 1986) 1 Co-Op Corp. v. Kleiner, 124 Misc. 2d (same). 104. Id., 722 N.Y.S.2d at 137. 1001, 1002, 478 N.Y.S.2d 519, 520 (Hous. 86. Kahn, 2004 WL 869746, at *2; McMunn, 105. Rubinstein v. 242 Apt. Corp., 189 A.D.2d Part Civ. Ct., Queens County 1984) 131 Misc. 2d at 343, 500 N.Y.S.2d at 221. 685, 685, 592 N.Y.S.2d 378, 378 (1st Dep’t (proprietary lease prohibits pets in 1993) (mem.). cooperative). 87. Pershad v. Parkchester S. Condo., 174 Misc. 2d 92, 94-95, 662 N.Y.S.2d 993, 995-96 106. W.O.R.C. Realty Corp. v. Carr, 262 A.D.2d 130. Seward Park Housing Corp. v. Cohen, 287 (Hous. Part Civ. Ct., Bronx County 310 , 311, 691 N.Y.S.2d 104, 105 (2d Dep’t A.D.2d 157, 162, 734 N.Y.S.2d 42, 47 (1st 1997) (incorrectly noted in Offi cial 1999) (mem.). Dep’t 2001) (applying Pet Law to publicly funded cooperatives); Corlear Gardens Reports as New York County) (holding 107. Whalen v. 50 Sutton Place S. Owners, Inc., Hous. Co, Inc. v. Ramos, 126 Misc. 2d 416, condominium association responsible 276 A.D.2d 356, 356-57, 714 N.Y.S.2d 269, 420, 481 N.Y.S.2d 577, 579 (Sup. Ct., Bronx for repairing code violations extending 270-71 (1st Dep’t 2000) (mem.). beyond individual unit), aff’d per curiam, County 1984) (“This Court fi nds that all 178 Misc. 2d 788, 683 N.Y.S.2d 708 108. Id. at 357, 714 N.Y.S.2d at 271. tenants, including cooperative tenants, (App. Term 1st Dep’t 1998); Smith v. 109. Ludwig v. 25 Plaza Tenants Corp., 184 are in need of the protection of the Pet Parkchester N. Condo., 163 Misc. 2d 66, A.D.2d 623, 624, 584 N.Y.S.2d 907, 908 Law.”); Linden Hill No. 1 Co-Op, 124 Misc. 69, 619 N.Y.S.2d 523, 525 (Hous. Part (1st Dep’t 1992) (mem.). 2d at 1007, 478 N.Y.S.2d at 523. Civ. Ct., Bronx County 1994) (fi nding 110. Zimiles v. Hotel Des Artistes, Inc., 216 131. Lamontanero, 206 A.D.2d at 341, 616 HP proceeding available when violation A.D.2d 45, 45, 627 N.Y.S.2d 382, 382-83 N.Y.S.2d at 745. stems from defective conditions (1st Dep’t 1995) (mem.). 132. Bd. of Managers of Parkchester N. in common area in condominium Condominium v. Quiles, 234 A.D.2d 130, association’s exclusive control); Gazdo 111. Chemical Bank v. 635 Park Ave. Corp., 155 130, 651 N.Y.S.2d 36, 36 (1st Dep’t 1996) Props. Corp. v. Lava, 149 Misc. 2d 828, Misc. 2d 433, 437, 588 N.Y.S.2d 257, 260 (mem.). 831-33, 565 N.Y.S.2d 964, 966-67 (Hous. (Sup. Ct., N.Y. County). Part Civ. Ct., Kings County 1991) 112. Oakley v. Longview Owners Inc., 165 Misc. 133. G.B.L. § 352 et seq.; G.B.L. § 352-e 1(a) (holding condominium managing board 2d 192, 195, 628 N.Y.S.2d 468, 470 (Sup. provides that “it shall be illegal and or agent responsible for common areas), Ct., Westchester County). prohibited . . . to make or take part in a appeal dismissed mem., 150 Misc. 2d 1019, public offering or sale in or from the state 579 N.Y.S.2d 305 (App. Term 2d Dep’t 2d 113. London Terrace Towers, Inc. v. Davis, 6 of New York of securities constituted of & 11th Jud. Dists. 1991). Misc. 3d 600, 602, 790 N.Y.S.2d 813, 815 participation interests in real estate . . . (Hous. Part Civ. Ct., N.Y. County 2004) including cooperative interests in realty, 88. Frisch v. Bellmarc Mgt., Inc., 190 A.D.2d (Gerald Lebovits, J.). unless and until there shall have been 383, 389, 597 N.Y.S.2d 962, 966 (1st Dep’t fi led with the department of law, prior 1993) (fi nding warranty of habitability 114. 40 W. 67th St. Corp. v. Pullman, 100 N.Y.2d to such offering, a written statement . . . inapplicable to condominiums). 147, 150-52, 760 N.Y.S.2d 745, 748-50, 790 N.E.2d 1174, 1176-79 (2003). which shall contain the information and 89. CIV. CT. ACT § 1911(b). representations required by paragraph 115. Id. at 154-55, 760 N.Y.S.2d at 751, 790 (b) of this subdivision. . . .” 90. Levandusky v. One Fifth Ave. Apt. Corp., N.E.2d at 1180. 75 N.Y.2d 530 537, 553 N.E.2d 1317, 1321, 134. Id. § 352-e(1)(b). 554 N.Y.S.2d 807, 811 (1990) (quoting 116. Id. at 153, 760 N.Y.S.2d at 749, 790 N.E.2d 135. For regulations promulgated by the Auerbach v. Bennett, 47 N.Y.2d 619, 629, at 1179. Attorney General, see 13 N.Y.C.R.R. Part 926, 393 N.E.2d 994, 1000, 419 N.Y.S.2d 117. 13315 Owners Corp. v. Kennedy, 4 Misc. 18. 920 (1979)). 3d 931, 932, 782 N.Y.S.2d 554, 556 (Hous. 136. STUART SAFT, Understanding a 91. B.C.L. § 717. Part. Civ. Ct., N.Y. County 2004) (Gerald Lebovits, J.). Condominium Offering Plan, N.Y.L.J., Nov. 92. Levandusky, 75 N.Y.2d at 538, 553 N.E.2d 29, 2004, at 1, col. 4. at 1322, 554 N.Y.S.2d at 812. 118. Id. at 950-51, 782 N.Y.S.2d at 570-71. 137. Vermeer Owners v. Guterman, 78 N.Y.2d 93. Id. at 537, 553 N.E.2d at 1321, 554 119. Id., 782 N.Y.S.2d at 570-71. 1114, 1116, 578 N.Y.S.2d 128, 129, 585 N.Y.S.2d at 811. 120. Id. N.E.2d 377, 378 (1991) (mem.); CPC Int’l v. McKesson Corp., 70 N.Y.2d 268, 275, 519 94. Id. at 538, 553 N.E.2d at 1321, 554 121. London Terrace Towers, 6 Misc. 3d at 603, N.Y.S.2d 804, 806, 514 N.E.2d 116, 118 N.Y.S.2d at 811. 790 N.Y.S.2d at 816. (1987). 95. Id. at 539, 553 N.E.2d at 1322, 554 122. Carnegie Hill 87th St. Corp. v. Heller, 9 138. G.B.L. §352-eeee. N.Y.S.2d at 812. Misc. 3d 1106(A), 806 N.Y.S.2d 444, 2005 96. Id. at 540, 553 N.E.2d at 1323, 554 WL 2205724, 2005 N.Y. Slip Op. 51417(U), 139. 322 W. 57th Owner LLC v. Penhurst N.Y.S.2d at 813. *2 (Sup. Ct., N.Y. County 2005). Productions, Inc., 15 Misc. 3d 1105(A), 836 N.Y.S.2d 504, 2007 WL 824105, 2007 N.Y. 123. 2005 N.Y. Slip Op. 51417(U), at *3. 97. Id. at 535, 553 N.E.2d at 1320, 554 Slip Op. 50515(U) , at *2 (Hous. Part Civ. N.Y.S.2d at 810. 124. 1050 Tenants Corp. v. Lapidus, 39 A.D.3d Ct. N.Y. County 2007). 379, 835 N.Y.S.2d 68 (1st Dep’t), lv. denied, 98. Id. at 540, 553 N.E.2d at 1322, 554 140. G.B.L. § 352-eeee. N.Y.S.2d at 813. 9 N.Y.3d 807, 875 N.E.2d 29, 843 N.Y.S.2d 536 (2007). 141. Id. § 352-eeee(1)(b). 99. Id. at 538, 553 N.E.2d at 1321, 554 N.Y.S.2d at 811. 125. Id. at 380-82, 835 N.Y.S.2d at 70-71. 142. Id. 100. Sherry Assocs. v. Sherry-Netherland, Inc., 126. Id. at 382, 835 N.Y.S.2d at 71. 143. Id. 273 A.D.2d 14, 15, 708 N.Y.S.2d 105, 106 127. Id., 835 N.Y.S.2d at 71-72. 144. Id. § 352-eeee(2)(c)(ii). (1st Dep’t 2000) (mem.). 128. N.Y.C. ADMIN. CODE § 27-2009.1. 145. Id. 101. Id. at 14, 708 N.Y.S.2d 106.

56 NYSBA N.Y. Real Property Law Journal | Spring 2008 | Vol. 36 | No. 2 146. Id. 167. Id. at *7. N.Y.S.2d 659, 662 (Sur. Ct., N.Y. County 147. Id. § 352-eeee(2)(c)(iii). 168. Id. at *11. 1989). 148. Id. § 352-eeee(2)(c)(iv). 169. 185 Misc. 2d 372, 374, 713 N.Y.S.2d 109, 186. 8 Misc. 3d 1026(A), 806 N.Y.S.2d 444, 2005 110 (App. Term 2d Dep’t, 2d & 11th Jud. N.Y. Slip Op. 51294(U), 2005 WL 1961330 149. Paikoff v. Harris, 185 Misc. 2d 372, 378, Dists. 1999) (mem.). (Sup. Ct. N.Y. County 2005). 713 N.Y.S.2d 109, 113 (App. Term 2d Dep’t 2d & 11th Jud. Dists. 1999) (mem.) 170. Id. at 374-75, 713 N.Y.S.2d at 111. 187. 2005 N.Y. Slip Op. 51294(U). *2. (“We do not read this provision, as do 171. Id. at 377-78. 713 N.Y.S.2d at 113. 188. 2005 N.Y. Slip Op. 51294(U), *8. the tenants, as focusing on the size of the 189. Joint Queensview Hous. Enterprise, 174 increase. Rather, its clear meaning is that 172. 166 Misc. 2d 439, 441, 636 N.Y.S.2d 577, A.D.2d at 605, 571 N.Y.S.2d at 313. the rent may not be increased beyond 578 (App. Term 2d Dep’t, 2d & 11th Jud. the rents being charged for comparable Dists. 1995) (mem.). 190. Id. at 606. 571 N.Y.S.2d at 313. apartments. Contrary to what tenants 173. DILORENZO, supra note 4, at § 11:8. 191. Id., 571 N.Y.S.2d at 313. may believe and the Housing Court may have indicated, the purpose of the statute 174. Berkowners, Inc. v. Dime Savings Bank 192. CPLR 213(7). of N.Y., FSB, 286 A.D.2d 695, 696, 730 was not to institute a system of rent 193. Yatter v. William Morris Agency, Inc., 256 N.Y.S.2d 339, 341 (2d Dep’t 2001). regulation for ‘non-purchasing tenants’ A.D.2d 260, 261, 682 N.Y.S.2d 198, 199 but to prevent sponsors from charging 175. Saada v. Master Apts. Inc., 152 Misc. 2d (1st Dep’t 1998) (mem.). these tenants above-market rents as a 861, 863, 579 N.Y.S.2d 536, 538 (Sup. Ct., 194. CPLR 217 & 7802; Buttitta v. Greenwich means of forcing them out.”). N.Y. County 1991); DILORENZO, supra note House Cooperative Apts., Inc., 11 A.D.3d 4, at § 11:9. 150. Id., 713 N.Y.S.2d at 113. 250, 251, 783 N.Y.S.2d 26, 27 (1st Dep’t 151. G.B.L. § 352-eeee(2)(c)(v). 176. McMillan v. Park Towers Owners Corp., 225 2004) (mem.). A.D.2d 742, 743-44, 640 N.Y.S.2d 144, 145 195. Excelsior 57th Corp. v. Winters, 227 A.D.2d 152. Id. § 352-eeee(2)(d)(i). (2d Dep’t 1996) (mem.); Saada v. Master 146, 147, 641 N.Y.S.2d 675, 676 (1st Dep’t Apts. Inc., 152 Misc. 2d 861, 863, 579 153. Id. § 352-eeee(2)(d)(ii). 1996) (mem.). N.Y.S.2d 536, 538 (Sup. Ct., N.Y. County 154. Id. § 352-eeee(2)(d)(iii). 1991). 196. RPL § 234. 155. Id. 177. DILORENZO, supra note 4, at § 11:6. 197. Rubinstein v. 242 Apt. Corp. 189, A.D.2d 685, 685, 592 N.Y.S.2d 378, 378 (1st Dep’t 156. Id. § 352-eeee(2)(d)(ii); G.B.L. § 352-eeee 178. 86 N.Y.2d 643, 658 N.E.2d 1034, 635 1993) (mem.). (2)(d)(iii). N.Y.S.2d 161 (1995). 198. Silber v. Schwartzman, 150 Misc. 2d 1, 2, 157. 69 N.Y.2d 448, 454, 515 N.Y.S.2d 740, 742, 179. Id. at 648, 658 N.E.2d at 1036, 635 575 N.Y.S.2d 226, 227 (App. Term 1st 508 N.E.2d 652, 654 (1987). N.Y.S.2d at 163. Dep’t 1991) (per curiam). 158. The opinion covered four similar cases, 180. Id., 658 N.E.2d at 1036, 635 N.Y.S.2d at 199. 930 Fifth Ave. Corp. v. Shearman, 2007 N.Y. consolidated and decided together. 163. Slip Op. 52153(U ), 2007 WL 3353570, at 159. De Kovessy v. Coronet Props., 69 N.Y.2d at 181. Id. at 649, 658 N.E.2d at 1036, 635 **1-4 (Hous. Part Civ. Ct. N.Y. County 458, 515 N.Y.S.2d at 744, 508 N.E.2d at N.Y.S.2d at 163. 2007) (Gerald Lebovits, J.). 656. 182. 81 N.Y.2d 1033, 1034, 616 N.E.2d 848, 848, 160. 70 N.Y.2d 785, 787, 521 N.Y.S.2d 414, 415, 600 N.Y.S.2d 191, 191 (1993) (mem.). 515 N.E.2d 1212, 1213 (1987) (mem.). Gerald Lebovits, a judge of the 183. Id. at 1036, 616 N.E.2d at 850, 600 New York City Civil Court, Hous- 161. Id at 786. 521 N.Y.S.2d at 414, 515 N.E.2d N.Y.S.2d at 193. at 1212. ing Part, and an adjunct professor at 184. In re State Tax Com. v. Shor, 43 N.Y.2d 151, St. John’s University School of Law, 162. Id. at 787, 521 N.Y.S.2d at 415, 515 N.E.2d 400 N.Y.S.2d 805, 371 N.E.2d 523 (1977); at 1213. Cibro Petroleum Products, Inc. v Fowler presided over New York County’s 163. Id., 521 N.Y.S.2d at 415, 515 N.E.2d at Finishing Co., 92 Misc. 2d 450, 450-51, 400 Coop and Condo Part from 2003 to 1213. N.Y.S.2d 322, 322-23 (Sup. Ct., Albany 2005. James P. Tracy is an associate County 1977); DILORENZO, supra note 4, at 164. Penhurst Productions, 15 Misc. 3d at at Finkelstein Newman Ferrara LLP. § 11:9. 1105(A), 836 N.Y.S.2d 504, WL 824105, The authors thank New York Law N.Y. Slip Op. 50515(U), *5. 185. See Joint Queensview Hous. Enterprise, Inc. v. Balogh, 174 A.D.2d 605, 606, 571 School student Stephanie L. Torre 165. Id. at *2. N.Y.S.2d 312, 314 (2d Dep’t 1991); Will for her research assistance. 166. Id. at *5. of Katz, 142 Misc. 2d 1073, 1076, 539

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