CONDO UNIT OWNER FOUND RESPONSIBLE
FOR REPAIR OF AUXILIARY WATER TOWER

 

The owner of two commercial condominium units at 225 East 57th Street, New York, New York and the condominium had a dispute concerning access to the auxiliary water tower located on the roof of the building which was comprised of residential coop units and several commercial spaces which were owned as condominiums.  Beginning in February 2003, there was an exchange of correspondence between the condominium and the unit’s owner concerning the condominium’s allegations that the duct work for one of the units air-conditioning system was improperly connected to the basement ventilation system resulting in water leakage and bad air quality in the building’s basement.  The adversely affected both workers and building resident who were in the basement.  The condominium took the position that the unit owner who utilized the auxiliary water tower was responsible for remedying the defect.  The unit owner’s position was that the duct work had been installed prior to his purchase of the unit and that under the declaration of condominium, it was the responsibility of the condominium to remedy any alleged defects in the duct work or ventilation system.

After the unit owner refused to make the necessary repairs to remedy the problem, the condominium arranged to have the work completed at a cost of approximately $7,000.  Several months later, the managing agent for the condominium wrote to the contractor that rather than carry out the work, the condominium was planning to disconnect the hookups to the ventilation system which would thereby disconnect the cooling tower from the condominium.

The complaint asserted three causes of action: 

  1. Pursuant to the Declaration of Condominium, the unit owner was entitled to the use of the auxiliary water tower and that the condominium’s act of disconnecting the tower constituted a trespass to plaintiff’s property and a breach of the by-laws and declarations;

 

  1. Disconnecting the auxiliary water tower resulted in a partial eviction of the plaintiff from the unit and that he was entitled to recover all common charges paid from the date that the tower was disconnected until it was reconnected; and
  1. As a result of the condominium’s refusal to reconnect the auxiliary tower, plaintiff sought a preliminary injunction which was denied by the court for failure to show irreparable harm.

 

With respect to the first cause of action, the court concluded that because the auxiliary tower and the ducts connecting the tower to the unit serviced only that unit, the Declaration of Condominium indicated that they were part of the unit.  Therefore, under the condominium’s by-laws, it was the responsibility of the unit in proper to keep the entire air-conditioning system which services only that unit improper repair and in compliance with applicable laws and regulations. 

As to the second cause of action for partial eviction, the condominium was correct in its position that a statutory claim of warranty of habitability is not available to the owner of a condominium unit.  Neither may the unit owner of a condominium withhold payment of common charges or assessments based on defective conditions in his unit or in the common areas based on a warranty of habitability.

With respect to the third cause of action for the cost of reconnecting the auxiliary water tower, the court concluded that under the declaration and by-laws, plaintiff was responsible for maintaining the unit’s air-conditioning system and duct work in proper repair and therefore had no remedy under this cause of action.  All of plaintiff’s substantive causes of action were dismissed as well as the claims for punitive damages.

Campaniello v. Board of Managers, Supreme Court, New York County (NYLJ 8/27/2008)

 

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