Goldstone v. Gracie Terrace Apartment Corp.

• Decision Date: 27 August 2013
• Citation: 2013 N.Y. Slip Op. 05725,110 A.D.3d 101,970 N.Y.S.2d 783
• Parties: Maro A. GOLDSTONE, Plaintiff–Appellant, Thomas R. Newman, Plaintiff, v. GRACIE TERRACE APARTMENT CORPORATION, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

110 A.D.3d 101
970 N.Y.S.2d 783
2013 N.Y. Slip Op. 05725

Maro A. GOLDSTONE, Plaintiff–Appellant,
Thomas R. Newman, Plaintiff,
v.
GRACIE TERRACE APARTMENT CORPORATION, Defendant–Respondent.

Supreme Court, Appellate Division, First Department, New York.

Aug. 27, 2013.

[970 N.Y.S.2d 784]

Duane Morris LLP, New York (Thomas R. Newman of counsel), and Ressler & Ressler, New York (Bruce Ressler of counsel), for appellant.

Tarter, Krinsky & Drogin LLP, New York (Andrew N. Krinsky and David J. Pfeffer of counsel), for respondent.

RICHARD T. ANDRIAS, J.P., DAVID B. SAXE, LELAND G. DeGRASSE, PAUL G. FEINMAN, JJ.

SAXE, J.

A cooperative shareholder suffered extensive property damage to her apartment when the 10,000–gallon water tank above her unit overflowed, causing flooding in her apartment and, thereafter, accumulations of toxic mold. The plan of renovation and repair proposed by the cooperative's board of directors would necessitate a 50–square–foot reduction in space of the apartment's more than 1,400 square feet. The shareholder objected to the proposal, claiming it violated the terms of the proprietary lease, and sought a preliminary injunction prohibiting the board from proceeding with its planned work. The motion court denied the application, and this appeal ensued.

Plaintiff Maro A. Goldstone has been a proprietary lessee of Penthouse B in defendant's co-op building at 605 East 82nd Street since 1972, when she and her former husband purchased the apartment. Plaintiff Thomas R. Newman is Ms. Goldstone's second husband and an occupant of the apartment. After the water tank overflowed and flooded plaintiffs' apartment in August 2003, and toxic mold was subsequently discovered, defendant cooperative corporation had a contractor gut the apartment's interior down to the cement, floors, ceilings and walls. Since then, the apartment has remained in uninhabitable condition.

Plaintiffs commenced this action in 2007, seeking damages and equitable relief based on causes of action for breach of contract, breach of the warranty of habitability, constructive and actual eviction, and a variety of torts. In 2010, this court declared that plaintiffs were entitled to a 100% abatement of maintenance from the date the water damage began until the apartment was restored to habitable condition (73 A.D.3d 506, 905 N.Y.S.2d 130 [1st Dept. 2010] ), and in 2011 the motion court granted plaintiffs summary judgment on their claims for breach of the warranty of habitability and breach of the lease obligation to make repairs.

In a motion made just before the present motion, defendant sought an injunction granting it access to the apartment to perform work. That motion was granted over plaintiffs' opposition, in which they made some of the same arguments raised in the present motion.

Plaintiff Goldstone then brought the motion under consideration here, challenging defendant's plan for the renovation of their apartment and seeking to prevent the work from proceeding. Plaintiff asserted that she and her husband gave defendant plans prepared by their architects in 2008 providing for a redesign of the exterior walls of the apartment to prevent water infiltration, and also provided bids from four qualified waterproofing contractors. However, rather than responding to that proposal, defendant had another engineer prepare plans providing for waterproofing and facade repair work for the building, including the renovation of plaintiffs' apartment, that defendant asserted avoided the prohibitively expensive need to demolish all the exterior walls.

Plaintiff argued that defendant's plan would decrease the size of the interior of

[970 N.Y.S.2d 785]

the apartment, in violation of her rights under the proprietary lease. Specifically, plaintiff asserted that by placing insulation on the apartment's interior, defendant's alterations would decrease the size of the interior and alter the apartment's configuration, because it would cause the loss of 2 1/2 inches along every wall where the insulation was placed, which plaintiffs' expert...