Exhaustive Investigation and Negotiation Results in Cooperator Garnering Exclusive Penthouse Roof Terrace

By Adam Leitman Bailey

Our clients purchased one of the 250 luxury units in an upper west side landmarked cooperative. Prior to the purchase, a real estate broker hinted to our clients that although no proof existed, the Unit may include an exclusive roof area bounded by a fence providing them with expansive city views and privacy from the main roof area. Upon moving in five years ago, the Board immediately denied our clients’ request to erect a fence and recognize the bounded area as exclusive to our clients. The Board claimed that the Unit did not include an exclusive roof area and relied on a provision of the Proprietary Lease, which clearly gave the right to outside space only to those units that had outside space at the time the cooperative was created. The Board claimed that our clients’ penthouse did not have an exclusive roof area at the time the cooperative was created. To make our clients’ situation worse, within the last two years the roof has been made open to use by the hundreds of residents of the building. The noise and lack of privacy renders the master bedroom and bathroom unusable. For years our clients have plead with and attempted to convince the Board of their right to an exclusive roof area. Our clients’ made one last appeal to the Board in late 2008.

When they were denied once again, they turned to Adam Leitman Bailey, P.C. for help.

Upon receiving the case we immediately identified a 1984 case with similar facts and a nearly identical Proprietary Lease provision. In that case, after extensive litigation, the cooperator was able to prove his right to exclusive use of a terrace by establishing the terrace’s historical presence. Our task was thereby made clear — we had to establish the presence of the exclusive roof area and fence since the early 1900s, when the cooperative was established. We utilized our clients’ rights under the Freedom of Information Act to gather all of the public information available from the Attorney General’s Office and the Department of Buildings. We then analyzed all of the filings with the Attorney General’s Office and architectural plans and construction applications filed with the Department of Buildings. We contacted architectural libraries to find plans from books on the building’s architect. We contacted business libraries to find diagrams in the broker resource, The Select Register of Apartment House Plans. We then identified the architects who worked on the building’s many roof repairs throughout the years. We tracked down those architects and requested archived plans and pictures of the roof. Since the roof was repaired a number of times throughout the years, we were able to find plans and pictures of the roof, which included a fence bounding the exclusive roof area from various years from the early 1900s through the 1990s. After our full scale investigation, we were able to prove that the exclusive roof area and fence were present from the early 1900s until it was removed by the Board in the 1990s.

We knew that once we had proven that the exclusive roof area was in fact part of our clients’ Unit, we would be able to establish a multitude of claims against the Board for depriving our clients’ of their exclusive roof space and privacy. In order to avoid the expense of litigation we created a submission to the Board’s attorney, including a draft Complaint, a proposed Resolution, and a proposed Settlement Agreement. Our draft Complaint, which we threatened to file if they did not agree to our proposed Resolution and Settlement Agreement, claimed discrimination, corporate misrepresentation, trespass, partial actual eviction, breach of contract, breach of the Business Corporation Law, nuisance, and breach of fiduciary duty on the part of the Board. The Complaint sought judicial relief in the form of declaratory judgment, injunction, and damages. The proposed Resolution declared the roof area exclusive to our clients and the proposed Settlement Agreement mandated the Board’s restoration of the fence at its sole cost and expense. Within days of receiving our submission, the Board’s attorney advised that the Board would pass the Resolution and agree to the terms of the Settlement Agreement so long as we would not file the draft Complaint.

After years of fighting with the Board, within a few short months after retaining Adam Leitman Bailey, P.C., our clients gained exclusive roof space and privacy in their master bedroom and bathroom.

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