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Think Before You Sue: The Importance of Getting Basic Facts Straight

Richard Siegler in Co-op/Condo Buyers

Sherrel Farnsworth, a shareholder of co-op apartment 10C at Turner Towers, 135 Eastern Parkway in Brooklyn, alleged that neighboring shareholder Rod Wells in 10D or a previous resident had moved the wall connecting their apartments, thereby reducing the size of Farnsworth's living room. She sought an order to remove and relocate the living-room wall in Wells' apartment.

In his motion for summary judgment — i.e., immediate dismissal in his favor — Wells stated in his affidavit that, on September 29, 1980, he became the lessee of apartment 10D resided there ever since. Wells further stated that he purchased the apartment "as is," and never moved or caused to be moved the wall in question. The proprietary lease stated 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.

The Plan is Afoot

Wells also submitted a copy of the August 26, 1980, co-op conversion offering. This showed that the property was offered for sale "in its current condition." It is also stated that the "outline description of the various typical apartment 'units' with approximate room dimensions ... have been modified from [apartment] to [apartment]," and thus represented only typical units.

The plan showed the dimensions of a C-line living room, such as Wells', as 14 feet, five inches by 20 feet, 10 inches. The typical dimensions of a D-line living room, such as Farnsworth's, was 13 feet, eight inches by 20 feet, eight inches.

Plaintiffs Sherrel and Heather Farnsworth became shareholder on or about May 1, 1987. Heather Farnsworth was now alleging that she measured her D-line living room and found that instead of it being 14 feet, five inches by 20 feet, 10 inches, as purportedly indicated in the plan, it was only 13 feet, eight inches wide. This alleged shortage, according to Farnsworth, was caused by either Wells or a predecessor having illegally moved the living room wall.

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 that she therefore owned the living-room wall. The court, of course, 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."

No Evidence Given

Wells stated that he did not move the wall in issue during his tenancy, and the documentary evidence supported this. Furthermore, Farnsworth failed, in the court's view, to present any evidence, aside from speculation, that the wall had been moved from its original position.

Moreover, 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 10C and 10D were not part of the site 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. The case was additionally flawed with technical issues — the court found that Farnsworth should have included Turner Towers as a "necessary party" defendant, for example.

Wells' motion for summary judgment was granted. 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.

It seems like a simple lesson, but judging from this case, it clearly bears repeating: Before you sue, make sure to have your facts straight.


Richard Siegler is a partner in the New York City law firm of Stroock & Stroock & Lavan.

Adapted from Habitat April 2002. For the complete article and more, join our Archive >>


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