Shapiro v. 350 E. 78th Street Tenants Corp.

Order, Supreme Court, New York County (Jane S. Solomon, J.), entered August 24, 2009, which granted plaintiffs motion for partial summary judgment on the issue of liability on her first and second causes of action, enjoined defendant to make repairs or improvements as necessary to restore plaintiffs use of the roof appurtenant to her apartment, and denied defendant’s motion to vacate so much of a prior order permitting plaintiff to place three chairs on the roof, affirmed, without costs. Plaintiffs status as shareholder of the subject unit entitles her to use the roof appurtenant to her apartment. The proprietary lease provides that “the Lessee shall have and enjoy the exclusive use of the . . . roof and/or that portion of the roof appurtenant to the penthouse, subject to the applicable provisions of this lease” and the offering plan states that the tenant’s roof apartment “will have the exclusive use of the roof of the Front House (and penthouse thereon).” In 1993, a clogged drainpipe outside plaintiffs apartment [602] caused a leak to develop in the adjacent apartment, resulting in replacement of the roof. In 2004, after the building again suffered major leaks, investigation revealed that plaintiff had installed wooden decking on the rear roof, on which she had placed furnishings that included iron furniture and planters containing large trees and shrubbery. In the summer of 2005, in response to a February 2005 notice issued by defendant cooperative, plaintiff removed the decks, furniture and planters from the roof to permit inspection by a qualified expert, who advised that wooden decks are not recommended on flat roofs because they encourage penetrations and punctures and obscure both leak prone areas and active leaks. Defendant’s expert also questioned whether a roof deck is even permissible under New York City building and fire department codes. Plaintiffs first cause of action alleges that, by notice dated October 24, 2005, defendant forbade her to use or even walk on the roof, a proscription that was made permanent by notice dated May 26, 2006. The second cause of action alleges that defendant failed to maintain the roof in a condition that permits plaintiff to use it or walk on it. These allegations are repeated in the third cause of action as grounds supporting a mandatory injunction requiring defendant to sufficiently improve the roof to permit a weight-bearing deck to be erected thereon. The court granted expedited judgment as to liability and enjoined defendant only “to make repairs or improvements as necessary to restore Plaintiff to her use of the roof space.” As the dissent concedes, the roof is damaged and requires repair. The current unserviceable condition of the roof is supported by an affirmation of the attorney for the cooperative in support of defendant’s motion dated April 30, 2009, which stated that the roof “in its current state is not structurally sound enough to withstand the weight of plaintiff, chairs . . . and/or any other individual or item that may be placed thereon.” The court further found, “As recently as April 29, 2009, the Corporation contended that the roof is in a condition of disrepair such that three persons cannot safely sit on chairs placed upon it.” Supreme Court noted that four years had elapsed since plaintiff was ordered to remove the items from the roof, and she complied with the order, but defendant had failed to repair the roof. Supreme Court properly concluded that defendant’s failure to maintain the roof deprived plaintiff of its use, in violation of the offering plan and proprietary lease (see Dinicu v Groff Studios Corp., 257 AD2d 218, 224 [1999]; Washburn v 166 E. 96th St. Owners Corp., 166 AD2d 272 [1990]), warranting injunctive relief directing repairs necessary to render the roof amenable to [603] plaintiffs right of use under the offering plan and proprietary lease, subject to reasonable regulation by defendant (see Benedict v International Banking Corp., 88 App Div 488 [1903]). In that section 7 of the proprietary lease grants plaintiff “the exclusive use of . . . that portion of the roof appurtenant to the penthouse,” the injunction does no more than enforce plaintiffs contractual rights, consistent with the court’s ruling on the first two causes of action. The determination of the extent of plaintiffs permissible use, including whether plaintiff transgressed building and fire codes, involves factual questions for resolution at the trial of plaintiffs remaining causes of action, together with defendant’s counterclaims, which seek compensation for roof damage alleged to have been caused by plaintiffs use. The dissent points to the affirmation of the attorney for the cooperative, which “reiterates” that “the roof was not built to support the load that plaintiff has placed upon it in the past” and that “plaintiffs unauthorized use of the roof caused any existing damage.” However, this allegation is not supported by the cooperative’s own engineer. In his report of the inspection of the roof conducted shortly after plaintiff had removed all structures and items, the engineer found that the rear roof is in “generally adequate condition” and the front roof “is in overall satisfaction condition.” In any event this issue can be further explored on the trial of defendant’s counterclaims. The dissent misapprehends the limited scope of the injunction. Although the motion court found the prohibition against any and all use of the roof by plaintiff to constitute a breach of the lease, the injunctive order merely directs defendant to make such repairs as may be necessary to restore plaintiffs use of the roof, consistent only with the rights granted to her as the owner of the shares allocated to the penthouse apartment. By withholding the bulk of the injunctive relief demanded in the third cause of action, the motion court recognized that the proprietary lease and offering plan do not grant plaintiff the right to install decking, furniture or planters. As stated by the motion court, “[Wjhether [pjlaintiff has an absolute right to install whatever decking and furniture she wishes on the roof — plainly, she does not ...” Whether a prior cooperative board validly authorized the installation of such items and whether such installation violated applicable City codes or caused damage to the roof structure are issues to be tried with any other surviving causes of action and the counterclaims. Finally, should questions arise with respect to the rights and obligations of the parties, they may apply for clarification or [604] modification to Supreme Court which, as the court imposing the injunction, has inherent power to afford appropriate relief (see People v Scanlon, 11 NY2d 459, 462 [1962], citing Dictograph Prods, v Empire State Hearing Aid Bur., 4 AD2d 508, 510 [1957]). Concur — Tom, J.P., Manzanet-Daniels and Román, JJ.