Civil Court of the City of New York, Small Claims Part, December 17, 2018
Claimant, a unit owner in the defendant condominium (the “Condominium”) commenced a small claims action to recover $4,755.00 from the Condominium for the loss of use of his outdoor terrace as a result of the Condominium’s renovation work on the exterior of the building. At trial, Claimant testified that the terrace was unusable for seven months because the Condominium was using it as a holding area for façade work required by Local Law 11 and that the work would be continuing for at least another seven months. Claimant alleged that the work could be done in a different way so as to not render his terrace unusable and that for this reason he should be compensated for the time the terrace is unusable.
In reviewing the Condominium’s bylaws, the Court cited to a provision which stated “structural or extraordinary repairs or replacements to terraces shall be made by the residential board and the cost and expense thereof shall be charged to all residential section unit owners as a residential common expense.” The Court found this provision to be ambiguous and in construing the ambiguity against the party that drafted the document, theorized that cost and expense could “encompass the diminution of value of Claimant’s apartment as a result of the construction.”
Additionally, with no provision limiting an abatement for building wide work, the Court held that there was a breach of the warranty of habitability and that Claimant paid for a benefit guaranteed by the Condominium’s declaration and bylaws that he did not receive.
Therefore, the Court awarded Claimant a full abatement for the “fair value of the terrace” for the seven months up to the date of trial, in the amount of $2,345.00 ($335 per month). The Court failed to aware damages prospectively as the duration of the work was found to be speculative.