Follow-up: Apartment Owner Won't Get Legal Fees from Co-op Board After All
June 30, 2014 — The neighbors thought the smell came from rotting human remains — that's how bad the odor was that emanated from the locked apartment. An anxious co-op board ordered the super to break in and, to everyone's relief, it was only a cat — one that, apparently, had been left unattended for some time and had been using the entire apartment as its litter box.
The board contacted Robert Broder, who held the shares for the unit. He returned the next day and removed the cat, mitigating the stench significantly. But the board had had enough. The co-op began an action for damages, 433 Sutton Corp. v. Broder, since Broder, in letting his unit became a massive pissoir, had violated the proprietary lease and house rules.
The co-op board also sought a preliminary injunction authorizing the board to have the place cleaned. The board argued that the conditions required an immediate response because Broder seemed "unwilling or unable to address these conditions."
Board Gets Early Win, But...
The court granted the board's initial application and permitted access to the apartment to remove all odor-producing garbage, as well as waste and areas of infestation. Yet after a related hearing, the court denied the board's motion for a preliminary injunction because it had violated the proprietary lease by beginning an action and seeking an injunction without first giving Broder the required opportunity to cure the problem.
The court dismissed the board's action but noted that Broder had violated the proprietary lease because he had failed to keep his apartment clean and kept an animal without permission. The court also denied his motion for attorneys' fees.
However, in a 3-2 decision the appellate court reversed and awarded fees to Broder, finding that even if he had breached the lease, the co-op's remedy was not to start an action but rather to serve him with a notice allowing him time to cure. Accordingly, the court decided the shareholder was entitled to attorneys' fees.
Yet in the End
But this story has a happy ending for the cooperative, after all. The highest appellate court in New York has just reversed that decision. So, in the end, the co-op does not have to pay Broder's attorneys' fees.
No word on the cat, however.
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