Greer v. Village Point Condominium, 2007 NY Slip Op 32311(U) (N.Y. Sup. Ct. 7/24/2007)
| Decision Date | 24 July 2007 |
| Docket Number | 0102272/2005.,Motion Seq. No. 004. |
| Citation | 2007 NY Slip Op 32311 |
| Parties | ZACHRY, NANCY GREER, Plaintiff, v. VILLAGE POINT CONDOMINIUM, Defendants. |
| Court | New York Supreme Court |
Motion sequence numbers 03, 04, and 05 are consolidated for decision.
Plaintiff Nancy Zachry is a former resident of 350 West 14th Street Penthouse G ("PG"), New York, NY. She has brought seven causes of action against Defendants. Defendants include Village Point Condominium ("VPC," the condominium association), members of the Board of Managers (Peter Hughes, Michael Dees, Gabrielle Machinist, Ron Auriana, Marisa Zalabak, John Assali, George Watson), and fellow condominium owners "John Doe" and/or "Jane Doe," and Jullieta Pizzini. Defendants Assali and "Doe" or "Doe's" are not involved in the current motions.
While Plaintiff lived in PH-G, several greenhouses were constructed on the roof in the terraces of other tenants. After they were built, water, allegedly from these greenhouses, leaked
into her condominium and caused mold and bacteria. She hired contractors to replace two doors due to the water damage and to waterproof one wall. Sometime after the mold was discovered she developed an avium complex, which is similar to tuberculosis. She alleges that this disorder arose from the mold in her condominium. Plaintiff also claims that her condominium is now— unliveable and she has not resided there since March 2003.
In order to build a greenhouse on a tenant's terrace, tenant must receive authorization from the Board. Plaintiff does not argue that any of the greenhouses were built without authorization. Her allegation is that they were never "legalized" by the Department of Buildings ("DOB"). Plaintiff also states that the members of the Board who have greenhouses were unfairly granted authorization since they were a member of the group who gave authorization.
Plaintiff claims that the greenhouses impede on her mode of egress from the roof. Plaintiff's Architect Arthur Atlas states that every floor must have two means of egress (Atlas MT. 22). Currently there is a set of scissor stairs and a bulkhead door leading to another staircase. When Plaintiff moved to the building there was a fire ladder on one of the terraces but the owner of that terrace removed it; said owner is not involved in this action. Plaintiff and Atlas argue that the current exits are not adequate fire exits and this inadequacy put the tenants and any firemen that would need to enter the roof in danger.
This action contains three motions for summary judgment.
In motion sequence number 03, Defendant Pizzini moves for summary judgment requesting that the Court dismiss the action. She asserts that Plaintiff has failed to establish a cause of action. Defendant Pizzini claims that she has not done anything improper and that Plaintiff does not ask for relief from her. Pizzini is only a part of the fourth cause of action in
the complaint. In this cause of action, Plaintiff requests "That Board should be ordered to require ... Pizzini to cause the above-described greenhouses to be properly and lawfully removed from their respective penthouses and from the roof of the building forthwith." (Compl. 43). Plaintiff believes that Defendant's greenhouse is illegal and impedes her mode of egress; therefore, it should be removed. Prior to building the greenhouse, Defendant obtained authorization from the Board according to the Rules and Regulations of VPC. If the Board erred by allowing Pizzini to construct her greenhouse, that still does not institute a wrong doing by her.
Plaintiff also claims that Defendant Pizzini's greenhouse obstructs her path of egress. However, since Pizzini received authorization from the Board to construct her greenhouse, she is not responsible for any impact on the alleged obstruction.
Plaintiff only requests action of the Board in her fourth cause of action, therefore, she has failed to seek relief against Pizzini directly in that cause of action. However, she is a necessary party who is properly a defendant in this suit based on joinder rules. CPLR § 1001 (a) states that "Persons ... who might be inequitably affected by a judgment in the action shall be made plaintiffs or defendants." Defendant Pizzini is subject to this compulsory joinder rule because the action may result in a change in the value of her property. "The purpose of the compulsory joinder rule is ... to protect the rights of persons who may be adversely affected by the outcome." Buechel v. Bain, 275 A.D.2d 65, 72, 713 N.Y.S.2d 332, 339 (1st Dept. 2000). See also Eclair Advisor Ltd. v. Jindo Am., Inc., 39 A.D.3d 240, 244-245, 833 N.Y.S.2d 440 (1st Dept. 2007).
In motion sequence number 04 Defendant Zalabak moves for summary judgment on all causes of action. Also, in motion sequence number 05 the remaining six Defendants (VPC,
Hughes, Dees, Machinist, Auriana and Watson) move for summary judgment on causes of action two through seven. The fourth and fifth cause of action pertain to the legalization of the greenhouses and means of egress. Plaintiff is incorrect in her assertion that the legalization has not yet occurred because the permit was issued by the DOB on December 13, 2004 (Def.'s Ex. B). After a permit has been issued by the DOB, anyone contesting said permit has to appeal the decision to the Board of Standards and Appeals ("BSA"). See Wilkins v. Babbar, 294 A.D.2d 186, 187, 742 N.Y.S.2d 224, 225 (1st Dept. 2002). After a decision by the BSA, then an unsatisfied party may bring the action to court, but that is not the situation here. Plaintiff has failed to follow the proper appeals process. She would typically have thirty days to appeal the decision of the DOB to the BSA. See Brause v. 2968 Third Avenue Inc., 41 Misc.2d 348, 349, 244 N.Y.S.2d 587, 589 (Bronx Cty. 1963). It has now been over two and a half years since the DOB's decision to issue a permit. Therefore, her time has expired and all requests for review of this decision must be dismissed. Plaintiff's complaint was filed on February 16, 2005, which means that even the improper action to start this case was not within the thirty day standard. Because the proper appeals process was not followed, the Court must honor the DOB's decision and motions for summary judgment on causes of action four and five must be granted. See Comm. for Environmentally Sound Dev. v. City of New York, 190 Misc.2d 359, 376, 737 N.Y.S.2d 792, 805 (New York Cty. 2001), Weissman v. New York, 96 A.D.2d 454, 456, 464 N.Y.S.2d 765, 767 (1st Dept. 1983).
It is established that the...
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