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New York Real Estate Law ReporterColumns & Departments

Co-ops and Condominiums

By New York Real Estate Law Reporter Staff
February 01, 2024
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Questions of Fact Preclude Summary Judgment on Unit Owner's Right to Exclusive Use of Outdoor Space

Heykal Properties, LLC v. 450 West 31st Street owners Corp., 2023 WL 6394576, AppDiv, First Dept. (memorandum opinion)

In commercial tenant's action for breach of the proprietary lease and breach of fiduciary duty, the commercial co-op's board and one of its board members appealed from Supreme Court's denial of their summary judgment motion. The Appellate Division affirmed, holding that questions of fact remained about whether unit owner had a right to exclusive use of adjacent outdoor space.

Commercial tenant sought to install HVAC on an outdoor space adjacent to their leased unit. The proprietary lease requires a lessee to obtain written consent of the lessor, which will not be unreasonably withheld. The co-op board rejected lessee's alteration plans, contending that lessees sought to use a common element of the building for their exclusive use. Commercial lessee then brought this action, alleging breach of the proprietary lease and one board member's breach of fiduciary duty based on her participation in matters in which she had a personal interest. Supreme Court denied the co-op board's motion for summary judgment, and the board appealed.

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