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Gracie Terrace Apartment Corp. v. Goldstone
Citations: 103 A.D.2d 699; 477 N.Y.S.2d 647; 1984 N.Y. App. Div. LEXIS 19307
Court: Appellate Division of the Supreme Court of the State of New York; July 12, 1984; New York; State Appellate Court
The Supreme Court of New York County issued an order on December 7, 1983, modifying a previous decision to grant partial summary judgment in favor of the defendants regarding the exclusive allocation of the eastern portion of the roof adjoining penthouse apartment B (PH-B) to its occupants. The court denied the defendants' motion for summary judgment on the entire case but dismissed the second, third, and fourth causes of action in the complaint initiated by Gracie Terrace Apartment Corporation (GTAC) against Dr. Jonas Goldstone and his wife Maro, which sought damages for unauthorized use of certain building areas over a ten-year period. The action, commenced on January 13, 1983, involved interpreting a proprietary lease issued on January 15, 1973, which defined the premises associated with PH-B. The court found that, while factual issues existed regarding the southern and western portions of the roof, the eastern portion was clearly allocated to Dr. Goldstone under the proprietary lease terms. The lease stipulated that any terrace, balcony, or portion of the roof adjoining a penthouse was meant for exclusive use by the apartment occupant, and this allocation was supported by the offering plan language. The court noted that there are only two penthouse apartments in the building, with only PH-B adjoining the roof portion in question. It confirmed that the eastern roof area, which had been improved and exclusively used by prior tenants for at least a decade, was included in the lease provisions. This prior use was known to Dr. Goldstone during his purchase decision, as communicated by the sponsor’s agent, Martin Goldstein, who had managed the building and was aware of the area’s exclusive use by PH-B occupants. GTAC opposed the defendants' motion for summary judgment by submitting an affidavit from Brewster Ives, chairman of Douglas Elliman Gibbons, Ives, Inc., who was involved in the building's conversion to cooperative ownership in 1971. Ives allocated shares to the penthouse apartment (PH-B) based on a 1951 floor plan that did not include any roof portion as part of PH-B. However, 13 NYCRR 17.4(e) states that no room plan may be used unless filed with the cooperative organization, rendering the unfiled 1951 floor plan inadmissible against the offering plan and proprietary lease, which explicitly state that PH-B includes "a portion of the roof adjoining a penthouse" with exclusive rights to its use. The language in the governing documents is clearly applicable to PH-B, as it uniquely has a roof portion adjoining it. Additionally, Joseph E. Browdy, counsel for prior owners during the cooperative conversion, confirmed that the language regarding roof use was included based on historical usage inquiries. Therefore, neither Ives' affidavit nor the 1951 floor plan creates a genuine issue of material fact regarding the roof's inclusion in the apartment. The court determined that partial summary judgment dismissing the second, third, and fourth causes of action for damages should have been granted to the defendants. It noted that GTAC's long-standing non-objection to the Goldstones' use of other roof areas constituted at least a revocable license for such use, especially since the Goldstones had been informed by GTAC's selling agent of the prior tenants' exclusive use of these areas. Concurrence was noted from Justices Sandler, Ross, Bloom, and Kassal.