CO-OP BOARD TRIES TO NEGATE ROOF DECK

In summer 2005, the co-op sent a notice demanding the Shapiros remove the deck, furniture and planters from their terrace so that it could be inspected. The items were removed and the co-op had its expert inspect the roof. The expert would not endorse wooden roof decks because roofs of this type were subject to punctures and made it difficult to access leak-prone areas as well as active leaks. The expert also questioned whether the deck was permitted by the New York City Fire Code.

This Roof's Not Made for Walking

By a notice dated October 24, 2005, the co-op forbade the Shapiros from even walking on the roof, and made the restriction permanent in a notice dated May 26, 2006. The Shapiros sued, claiming the co-op had an obligation to maintain the roof in a condition that permitted the Shapiros to walk on it. The Shapiros sought, among other things, an order requiring the co-op to restore the roof to a condition that would have allowed them to use it, which also meant making it weight-bearing. 

The co-op asserted that the roof, in its condition at the time, was not structurally sound enough to withstand the weight of the Shapiros' chairs or any other item of furniture. The court noted that as recently as April 29, 2009, the co-op contended "that the roof is in a condition of disrepair such that three persons cannot safely sit on chairs placed on it."

The motion court directed the co-op to make repairs as necessary to restore to the Shapiros "use of the roof space." It noted that it had been four years since the Shapiros were directed to, and did, remove the items from the roof.

The court discussed that the offering plan provided that the owner of the Shapiros' apartment would have exclusive use of the roof area, subject to the co-op's right to access "whenever necessary for the maintenance and operation of the building." The proprietary lease was similar: "[i]f the apartment includes a ... roof, and/or a portion of the roof adjoining a penthouse, the Lessee shall have and enjoy the exclusive use of the ... roof and/or that portion of the roof appurtenant to the penthouse, subject to the applicable provisions of this lease and to the use of the ... roof by the Lessor to the extent herein permitted." Further, the lease provided that the co-op would, at its sole cost and expense, manage the building as a first-class apartment building.

You Can Use It, But...

The co-op did not dispute that the Shapiros were entitled to use the roof, nor did it dispute that the roof's condition was such that it could not be used. The co-op argued that the question was whether the Shapiros had the right to install whatever decking and furniture they wanted on the roof.

In response, the court stated this was not the issue and that the Shapiros did not have the right to place whatever they wanted on the roof. The court framed the issue as whether "for the last four years, the [co-op] has violated the offering plan and the lease by depriving [the Shapiros] of any residential use of a major part of what [they had] paid for…."

The court determined that the co-op's failure to maintain the roof deprived the Shapiros of its use, which violated the proprietary lease and offering plan. The court explained that while the Business Judgment Rule protects co-ops from decisions made in certain contexts, it does not protect the board from a breach of contract (here, the proprietary lease).

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