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Saving a Condominium Building From Demolition

The plaintiff, the owner of two third-floor units at a residential condominium on Manhattan’s Upper West Side, brought suit against Adam Leitman Bailey, P.C.’s clients, the condominium sponsor and its corporate affiliates. The plaintiff alleged that she had contracted with the sponsor to purchase the units during 2007 in reliance on the sponsor’s representations that a planned commercial community facility space the sponsor intended to develop – as yet, unconstructed – would not exceed two stories in height.

When the sponsor began erecting the commercial community facility space during 2013, the plaintiff began claiming that the construction was proceeding “directly in front” of her units, in excess of two stories, and above the floor slab of her third-floor units. The plaintiff further alleged that she had retained an engineer and surveyor, whose survey concluded that the community facility’s parapet was eleven feet higher than the third-floor slab of the residential condominium building. The plaintiff also alleged that the new structure was blocking and “materially and adversely” impacting the light, view, and air circulation in her units.

The plaintiff’s complaint, filed in 2014, asserted causes of action for breach of contract, fraud, negligent misrepresentation, breach of the implied covenant of good faith and fair dealing, violation of General Business Law §§ 349 and 350 (deceptive acts and practices), and nuisance. As for her damages,the plaintiff alleged that the market value of her units had declined by no less than twenty percent as a result of the diminished light, view, and air circulation. As remedies, the plaintiff demanded damages as high as $2 million and, more ominously, a permanent injunction directing Adam Leitman Bailey, P.C.’s clients to demolish the structure in its entirety or at least any part of the structure that exceeded two stories.

Adam Leitman Bailey, P.C., representing the defendants, moved to dismiss the plaintiff’s complaint. The firm’s motion advanced three primary arguments. First, it demonstrated that injunctive relief is not available in an action for money damages, where the complaint does not plead a cause of action for injunctive relief, and where there is no allegation or evidence that the new construction violates applicable zoning laws or a restrictive covenant, or is causing an invasive nuisance such as air pollution.

Second, the firm’s motion demonstrated that half of the plaintiff’s claims should be dismissed for lack of legal standing because the plaintiff had not purchased one of the two apartments at issue directly from the sponsor. Rather, the plaintiff had taken an assignment of the unit from relatives who had purchased the unit at a reduced insider price available only to tenants in occupancy at the time the building was converted to condominium ownership. The plaintiff therefore lacked privity of contract with the sponsor on half of the asserted claims.

Third, the firm’s motion established that the plaintiff had no case, even for breach of contract, because the terms of the condominium offering plan fully disclosed to potential purchasers that the planned commercial community facility would be two floors, each having a minimum height of 8 feet. Conversely, the condominium offering plan did not expressly covenant to provide light or air, and under New York law there is no easement for light and air except where created by express agreement. Despite the long odds facing any defendant seeking pre-answer dismissal of a plaintiff’s complaint, in this case Adam Leitman Bailey, P.C., hit a home run. The court granted the firm’s motion to dismiss in its entirety. Persuaded by the firm’s central argument that the offering plan had adequately placed future unit owners, including the plaintiff, on notice concerning the planned construction of the commercial community facility space, the court held that all of the plaintiff’s claims must fail, that discovery would not assist the plaintiff, and that the action had to be dismissed. As a result, this $150 million development will live to see another day.

Adam Leitman Bailey, P.C. attorneys Adam Leitman Bailey and Jeffrey R. Metz represented the defendants.

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