A Relocated Wall

May a co-op owner require the relocation of another owner's living room wall because it did not correspond to the dimensions of the sample apartments listed in the co-op offering plan? The answer was a clear "no" in Farnsworth v. Wells where the court dismissed the lawsuit for failure to state a cause of action.

Sherrel Farnsworth, a proprietary lessee and shareholder of cooperative Apartment No. 10C, located at 135 Eastern Parkway in Brooklyn, alleged that either defendant, Rod Wells, the proprietary lessee and shareholder of Apartment No. 10D, or his predecessors, moved or caused to be moved, the living room wall connecting their apartments, thereby reducing the size of plaintiff's living room. She sought an order to remove and relocate the living room wall in Wells' apartment. The proprietary lessor for the apartments in issue was Turner Towers Tenants Co-op Corp.

Wells moved for an order dismissing the complaint on the following grounds: (1) the plaintiff did not have legal capacity to sue; (2) the complaint failed to state a cause of action: (3) the defendant was not a proper party; and (4) the necessary party/parties to this lawsuit had not been named as defendants. He also requested attorney's fees, which he allegedly incurred in defending against the lawsuit.

In support of his summary judgment motion, Wells stated in his affidavit that, on September 29, 1980, he became the lessee of Apartment 10D by purchasing 617 shares of the co-op and that he had resided there ever since. Wells further stated that he purchased the apartment "as is," and never moved or caused to be moved the wall separating his apartment from that of the plaintiff. He further stated that the proper party to this lawsuit was the co-op, Turner Towers. As a result of having to defend against Farnsworth's lawsuit, Wells alleged that he has already expended $2,500 in legal fees, and had been advised by his attorney that another $2,000 was owed.

Wells had also submitted a copy of the August 26, 1980 offering plan for the conversion of the premises to cooperative ownership. The plan showed that the property was offered for sale "in its current condition." It is also stated therein that the "outline description of the various typical apartment 'units' with approximate room dimensions...have been modified from [apartment] to [apartment]; thus the attempt of [the outline description] was to investigate a 'typical unit.'"

The plan also indicated that the dimensions of a living room in a typical unit in the "C" line of apartments (plaintiff's line) at the premises, was 14 feet, five inches by 20 feet, 10 inches. The typical dimensions of the living room in the "D" line (defendant's line), was 13 feet, 8 inches by 20 feet, 8 inches.

Wells also submitted a copy of the proprietary lease, dated September 29, 1980, between himself, as lessee, and the lessor, Turner Towers. Paragraph 21(a) of the lease, states that the lessee "shall not, without first obtaining the written consent of the Lessor, which consent shall not be unreasonably withheld," make any alteration inside the apartment.

Wells had also submitted documentary evidence showing that Sherrel and Heather Farnsworth signed on or about May 1, 1987 Farnsworth's lease, as co-lessees, on or about May 1, 1987. In opposition to the motion to dismiss the complaint, Farnsworth stated in his affidavit that she brought this action "to toll the statutory period and prevent [d]efendant from acquiring by either adverse possession or by prescription an area approximately 9 feet x 15 feet that belongs to [her] unit..."

She alleged that she measured her living room and found that instead of her living room being 14 feet, 5 inches by 20 feet, 10 inches, as purportedly indicated in the plan, it was only 13 feet, 8 inches wide. This alleged shortage, according to Farnsworth, was caused by either Wells or a predecessor having illegally moved the living room wall from its proper place. She also opined that the proprietary lease conveyed to her "exclusive possession of the real property contained within the four (or more) walls of the apartment" and she therefore owned the living room wall.

The court said it was accepted law that a co-op corporation "is the sole owner of the land, structures and facilities, while the individual shareholder through the proprietary lease receives the right to occupy the space in the premises to which his or her shares are allocated." The lease in the case before the court stated that any proposed alterations within the apartments required the written consent or the co-op, Turner Towers. Wells, who purchased the apartment in 1980, stated that he bought it "as is." This allegation was confirmed by the 1980 plan, which offered the premises "in its current condition."

Wells also stated that he did not move the wall in issue during his tenancy. There was nothing present on this motion to refute this allegation. Furthermore, Farnsworth, who purchased her apartment 10C in 1987, had failed in the court's view to present any evidence, aside from mere speculation, that the wall had been moved from its original position inside the apartments at all.

Farnsworth's reliance on the dimensions provided in the plan was misplaced said the court. The plan's description "of the various typical apartment 'units' with appropriate room dimensions" is followed by the caveat that "layouts of an [apartment] 'unit' have been modified from [apartment] to [apartment]."

The living room dimensions for Apartments 10C and 10D are not part of the survey conducted for the plan. There was also no evidence offered by Farnsworth that these two apartments were supposed to coincide with the dimensions for Apartments 5D and 6C, which were listed in the plan as being the sample apartments. Furthermore, Farnsworth moved into her apartment in 1987. The court held that it strained credulity that it took all these years for her to realize that the apartment was smaller than she had originally thought.

In order to prevail in a summary judgment motion, the movant had to establish its entitlement to summary judgment as a matter of law. Once this is established, the court noted, the party opposing the motion must produce "evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which the opposing claim rests." Farnsworth had not met her burden of showing the existence of issues of fact. Dismissal of the complaint was therefore warranted.

Additionally, the court said that Wells correctly argued that necessary parties had not been added as defendants. CPLR 1001, titled "Necessary joiner of parties" states: "(a) Parties who should be joined. Persons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action shall be made plaintiffs or defendants. When a person who should join as a plaintiff refuses to do so, he may be made a defendant."

In the case before the court, Turner Towers was the owner of the premises and lessor of the apartments therein, including Apartments 10C and 10D. Farnsworth was seeking a declaratory judgment, which would affect Turner Towers' property rights. Therefore, in the court's opinion, Turner Towers was a necessary party. The court also held that the co-lessee of Apartment 10C, Heather Farnsworth, was a necessary party and should have also been made a party to the lawsuit, as she would be affected by any decision rendered concerning the size of her apartment.

With reference to legal fees, the court said that the Court of Appeals stated that, generally, "attorney's fees are incidents of litigation and a prevailing party may not collect them from the loser unless an award is authorized by agreement between the parties, statue or court rule." The defendant had not alleged that any of these exceptions applied here. It was therefore ordered by the court that Wells' motion was granted to the extent that the complaint was dismissed.

Comment: The result here was predictable. There was no proof that the wall had been moved. Also, the plaintiff waited a long time to pursue this claim. As a result, the sympathy of the court was not invoked. Indeed, other defenses such as laches, waiver, and estoppel probably could have been raised by the defendant to support dismissal of the claim.