Opinion
October 5, 1992
Appeal from the Supreme Court, Westchester County (Burrows, J.).
Ordered that the judgment is reversed, on the law and the facts, with costs, the plaintiff's application for an injunction is denied, and it is declared that the second floor of the accessory building is a limited common element reserved for the exclusive use of the defendants.
Washington's Headquarters Townhouses Condominiums is a residential condominium development located in Dobbs Ferry. In 1972 the defendant Ferdinand Gottlieb, a long time resident of Dobbs Ferry, and an established architect, formed a corporation, FG Properties, Corp. (hereinafter FG). FG acquired the land upon which the condominium was built, developed the condominium, and became the condominium's sponsor and selling agent. Mr. Gottlieb, as an architect, designed the project, and he and his wife subsequently purchased unit 1.
On the grounds of the condominium development, there is a two-story accessory building. Apparently, while the condominium units were being sold, the second floor of this accessory building was used as an office for drafting the condominium plans and as a sales office. Beginning in 1978, shortly after the defendants purchased unit 1, Mr. Gottlieb began using the second floor of this accessory building as his private architectural office. The plaintiff board of managers of the condominium commenced this action against the defendants in 1985, seeking an injunction against further use of this area.
We reject the Supreme Court's conclusion that the second floor of the accessory building is a common element of the condominium. The condominium's declaration explicitly excluded the second floor as a common element. In addition, since it is undisputed that the second floor is not a condominium unit, by implication, the second floor was intended to be a limited common element under Real Property Law § 339-i (4). Moreover, the condominium's offering plan, which, although informational in nature, is intended to provide protection against fraud by the sponsor (see, Matter of Whalen v Lefkowitz, 36 N.Y.2d 75, 78; Matter of Greenthal Co. v Lefkowitz, 32 N.Y.2d 457, 462), explicitly designated in no less than four places the second floor as a limited common element reserved for the exclusive use of the owners of unit 1.
The defendants have also established a contractual right to occupy the second floor. The purchase agreement, which was required to be signed by every original owner of the condominium units, stated that the purchaser agreed to be bound by the terms of the offering plan, and that any inconsistency between the purchase agreement and the offering plan were to be resolved in favor of the offering plan. The provision of the offering plan which designated the unit owners' relationship to the second floor did not merge into the defendants' deed, as this provision was a collateral undertaking (see, Davis v Weg, 104 A.D.2d 617; Ting-Wan Liang v Malawista, 70 A.D.2d 415).
Further, since the plaintiff did not formally demand that Mr. Gottlieb quit his use of the second floor as an office, and at other times explicitly acquiesced in his conduct, and since the defendants have changed their position in reliance on the board's inaction, the defendants have established their defenses of laches and estoppel (see, Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 N.Y.2d 175, 184; Burns v Egan, 117 A.D.2d 38; Airco Alloys Div. v Niagara Mohawk Power Corp., 76 A.D.2d 68).
We have considered the plaintiff's remaining arguments and find them to be without merit. Mangano, P.J., Harwood, Miller and Santucci, JJ., concur.