"Spoliation of Evidence": Another Reason Not to Misbehave During a Lawsuit
July 18, 2014 — In the ever-amusing annals of things co-op and condo boards shouldn't do, one of them is breaking into an apartment during a legal dispute. This wouldn't seem to be a point of which boards, or people in general, need reminding. But at the Park South co-op, at 200 Central Park South in Manhattan, that's just what the board did during an ongoing lawsuit — and even though the shareholder was in the building at the time.
Medical doctor Peter Kosovsky had bought apartment 21D in 2001. Five years later, in 2006, the co-op board voted to replace railings on the roof and on balconies, and to install waterproofed concrete pavers on each terrace, replacing the terrazzo there. So far, so sensible. The building manager, Rose Associates, hired AM&G Waterproofing to do this renovation work, and Eliseo Associates to provide architectural and engineering services.
During the renovation, Kosovsky complained several times to the board that much dust had infiltrated his apartment, along with a pervasive bad odor, and that cracks had begun to appear on his walls, ceilings and windows. The board investigated and found that the previous owner had installed the windows, improperly: They weren't attached to the structure of the building and so the apartment couldn't be properly sealed, hence the dust. The board told Kosovsky to complain to the company that had installed the windows years before, but he did not.
Fine Time
Instead, in 2007, he sued the co-op, saying that what with the dust, odor and other issues he had been forced to move out of his apartment. The case dragged on, and in November 2011 Kosovsky complained to the Department of Buildings, which then issued a "Notice of Violation and Hearing" against the board for a "failure to maintain" the building. It also found an existing defect, stating, "Brick and stone work below interior of window has deteriorated and top of window is leaning outward approximately one inch in apartment 21D." DOB established set a "cure date" of January 9, 2012. When Park South failed to fix the problem, the New York City Environmental Control Board fined it — all of $200.
The judge in the lawsuit, Kathryn E. Freed, decided that the repair work needing to be done to remedy the violation would afford all parties the opportunity to observe the interior condition of the wall, and she directed all parties to be present with their respective experts when the repair work was scheduled to commence.
Nevertheless, on March 14, 2012, without Kosovsky, Eliseo or AM&G knowing about it, the board had a locksmith drill through the locks on the apartment door. Some contractor or other, or perhaps even the super — the lawsuit doesn't say — then did the repair work "without plaintiff's or Eliseo's knowledge or consent and in contradiction to the Court's order." Making matters worse, Kosovsky "was present in the building at the time and could have been notified that entrance was needed." The proprietary lease, the court noted, permitted Park South to enter the apartment "upon notice" to make necessary repairs.
Spoliation Alert
This unauthorized entrance and subsequent repair work created what's called spoliation of evidence — and the effect was that on January 22, 2013, the court granted a motion by the architectural firm, Eliseo to strike any claims by Park South about the quality of its work. It also granted Kosovsky's motion to preclude the board from introducing any evidence or testimony that either Kosovsky or the previous owner was responsible for the deterioration of the wall. And the court also chastised Kosovsky for not letting workers into his apartment, which Kosovsky said was due, in part, at least, to the lawsuit being ongoing.
The lesson? Don't cross the judge — they hate that. And realize that when you gather evidence in an unauthorized way, or tamper with it or otherwise "spoil" evidence, the court can stop you from presenting it.
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