A Leak Raises Questions
Dec. 22, 2015 —
A leak that occurred in a Queens co-op raises questions. Not the leak itself, but its aftermath. The story involves what must be a relatively small building because the president also happens to be the managing agent. One day this president/manager – let’s call him “the P.M.” for short – gets a call from one of the shareholders – let’s call him Steve – who tells him he needs the super to fix a leak in his bathroom ceiling. The leak is apparently coming from the pipes between Steve’s unit and the unit upstairs. Time goes by and the P.M. and the super ignore repeated requests from Steve to make repairs.
“The leak had gotten so bad that the bathroom ceiling was about to collapse,” Steve wrote in Habitat’s online “Board Talk.” So, the frustrated shareholder finally called 311 and filed a complaint with the New York City Office of Housing, Preservation & Development (HPD), which eventually issued a violation. In response to HPD, says Steve, “the super did fix the water leak (although I don't think it's fully fixed)” and the P.M. “‘then turned around and gave me a one-week notice to fix the water damage, and he also instructed the building attorney to initiate the default provision of my lease. This is obvious retaliation because I filed the complaint with HPD.”
What is just as obvious is that the co-op was clearly in the wrong. First, the obvious retaliation is forbidden by law. Attorney David Berkey, a partner at Gallet, Dreyer & Berkey, points to Section 223-b of the Real Property Law, which says, in part, “No landlord... shall serve a notice to quit upon any tenant or commence any action to recover real property or summary proceeding to recover possession of real property in retaliation for… a good faith complaint, by or in behalf of the tenant, to a governmental authority of the landlord's alleged violation of any health or safety law, regulation, code, or ordinance.”
In addition, says attorney Adam Leitman Bailey, a partner in his eponymous firm, under habitability laws, the co-op has a clear-cut responsibility to repair the leak. In fact, the shareholder wouldn’t even have to go to court, says Bailey. The default action against the shareholder was so obviously done in a fit of pique that a letter from an attorney to the co-op’s counsel would probably be enough to quash the action – if the co-op’s counsel has not already dissuaded the P.M.from proceeding. If the shareholder did take it to court, Bailey says he would win, and, under the law, would probably be reimbursed for his attorney fees.
As for the basis for the default – the demand that the shareholder repair the damage within a week – housing law is clear on this, too. According to Bailey, under the Multiple Dwelling Law, the board has a fiduciary responsibility to fix the leak and do at least basic repairs to the damage. “The co-op has to fix the problem and then [if appropriate] charge it back to the shareholder.” If the board still refuses to act on the initial leak complaint, Bailey says the shareholder has a couple of alternatives: he can go to the “HP” part of housing court – designed solely for this issue – where he can get a court order to make repairs. Or he can always get results from dialing 311, as he did, and get HPD involved.