Summary
In Seven Park Ave., supra, the final factor in affirming an order to remove a "half bath" was the Board's "reluctance to set a precedent for similar applications."
Summary of this case from Kaplan v. Park S. Tenants Corp.Opinion
November 21, 2000.
Judgment, Supreme Court, New York County (Barbara Kapnick, J.), entered May 17, 2000, upon the parties' respective motions for summary judgment, inter alia, declaring that defendant tenant's installation of a half bath in his apartment was a breach of his proprietary lease with plaintiff cooperative housing corporation, and permanently enjoining defendant to remove such installation, unanimously affirmed, with costs.
Michael A. Richman, for plaintiff-respondent.
Charles Palella, for defendant-appellant.
Before: Rosenberger, J.P., Wallach, Saxe, Buckley, Friedman, JJ.
Since paragraph 21 of the proprietary lease plainly states that consent for alteration of "pipes" or "plumbing fixtures" ;, among other things, "shall not be unreasonably withheld", plaintiff's denial of defendant's supplemental application to install the half bath was "not sheltered from review by the business judgment rule" (Rosenthal v. One Hudson Park, 269 A.D.2d 144). Accordingly, the trial court properly concluded that a trial was needed to determine whether plaintiff's action was in fact "reasonable", i.e., "legitimately related to the welfare of the cooperative" (id.).
The trial evidence, viewed in a light favorable to the prevailing party (see, Thoreson v. Penthouse Intl, 80 N.Y.2d 490, 495), supports the court's conclusion that plaintiff's board's denial of permission to complete the half bath was reasonable, based on concern for a possible adverse impact on the building's plumbing infrastructure, longstanding board policy and a reluctance to set a precedent for similar applications.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.