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| What's that? Yes, we did say window-washing. Over one hundred thousand dollars spent in legal fees, all over window washing. |
Tripping on Stipulations: A Condo Board Tries to Game the Bylaws ... and Fails: Don't count your bylaw amendments before they're hatched, and watch out when attorneys suggest an end-run around homeowners trying to stick to their rights. So go, at least, the lessons in a recent case involving an Upper East Side condominium board — which lost a lawsuit against a unit-owner over the crucial, critical, monumental issue of window-washing, then won a malpractice case against its own attorneys.
What's that? Yes, we did say window-washing. Over one hundred thousand dollars spent in legal fees, all over window washing.
What's that? Yes, we did say window-washing. Over one hundred thousand dollars spent in legal fees, all over window washing.
In 2005, the condo board of Bridge Tower Place Condominium — a 38-story luxury high-rise at 401 East 60th Street, designed by Costas Kondylis and completed in 2000 — sought access to the wraparound terrace of the building's sole penthouse. The board said it wanted to install a scaffold to perform inspection and make repairs, and apartment-owner Robert J. Luzzi — then the executive vice president and chief marketing/creative director with the fashion retailer New York & Company and now chief marketing officer of Ann Taylor Stores — said OK.
At about the same time, however, unit-owners were lobbying the board to undertake a building-wide window-washing project. The board determined that the easiest and most economical way to do this was to use the scaffolding already installed on Luzzi's terrace.
Gotta Know When to Scaffold 'Em - Not so fast, said Luzzi — and with the board evidently standing fast, he filed a lawsuit against the condominium in June 2006 seeking to permanently forbid the board from using his terrace as a scaffolding hang for washing the building's windows. He also sought a declaration that he was not required to grant such access.
The board hired the law firm Starr Associates, which assigned attorneys Evan Schieber (no longer with the firm) and Andrea L. Roschelle . The attorneys arranged for a "stipulation" — an agreement between attorneys, with the clients' permissions, designed to simplify litigation — that said the condominium would not perform any window washing from Luzzi's terrace and would allow the board to amend the bylaws in the future to provide that unit-owners could not deny the board access for window-washing purposes. The apparent plan, said the court in Board of Mgrs. of Bridge Tower Place Condominium v. Starr Assoc., LLP, "was that the stipulated injunction would be temporary, until the By-Laws could be amended."
At about the same time, however, unit-owners were lobbying the board to undertake a building-wide window-washing project. The board determined that the easiest and most economical way to do this was to use the scaffolding already installed on Luzzi's terrace.
Gotta Know When to Scaffold 'Em - Not so fast, said Luzzi — and with the board evidently standing fast, he filed a lawsuit against the condominium in June 2006 seeking to permanently forbid the board from using his terrace as a scaffolding hang for washing the building's windows. He also sought a declaration that he was not required to grant such access.
The board hired the law firm Starr Associates, which assigned attorneys Evan Schieber (no longer with the firm) and Andrea L. Roschelle . The attorneys arranged for a "stipulation" — an agreement between attorneys, with the clients' permissions, designed to simplify litigation — that said the condominium would not perform any window washing from Luzzi's terrace and would allow the board to amend the bylaws in the future to provide that unit-owners could not deny the board access for window-washing purposes. The apparent plan, said the court in Board of Mgrs. of Bridge Tower Place Condominium v. Starr Assoc., LLP, "was that the stipulated injunction would be temporary, until the By-Laws could be amended."
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| Bridge Tower Place, luxury condominium (38 stories, 219 apartments) with... dirty windows. |
Tricky thing about words and wording, though: The stipulation said that the condominium "is permanently enjoined from erecting scaffolding or any other form of access to the Premises … for purposes of exterior window washing …" It also said, however that "[n]othing contained in this stipulation is intended or shall be construed to limit or impair the parties' right or obligations under the condominium's declaration and by-laws…," which the court said both the board and Starr Associates took to mean "that the Stipulation would accomplish the Condominium's goal of using Luzzi's terrace as an anchor for scaffolding that would allow the Condominium to wash the exterior windows of the building." Both Schieber and the attorney for Luzzi signed off on it.
On the Amend: So the condo board went ahead and amended its bylaws in October 2006 to allow it access from Luzzi's terrace in order to wash the windows. All well and good, right?
Wrong. Funny thing about that stipulation phrase "permanently enjoined": It seemed to say that the board was enjoined (i.e., prohibited) permanently (i.e., permanently) from erecting scaffolding on Luzzi's terrace for the purposes of window washing.
That's how Luzzi saw it when he again denied the board access to his terrace for window-washing purposes. And that's how New York Supreme Court Justice Leland DeGrasse saw it, too, in May 2007 when he denied the board's motion for window-washing access. In fact, DeGrasse issued a permanent injunction against it. There's that tricky word again - "permanent." The appeals court, the state's highest, affirmed the ruling in June 2008.
Long story short, the condo board hired private-practice attorney David Bolton to suit Starr Associates for malpractice for "failing to obtain the intended purpose of the Stipulation." Starr blamed it on "the vagaries of the courts" and, anyway, they didn't "guarantee" the stipulation would produce any particular result.
But as Judge Melvin L. Schweitzer wrote in his Dec. 12, 2012, decision granting the condo board summary judgment against the attorneys, "This argument is specious. Defendants clearly believed that they had procured the sought-after result, and the Condominium was reasonable in believing that such was the case. Defendants' contention that the fault is with the courts for coming to a wrong conclusion concerning the wording of the Stipulation is equally specious."
On the Amend: So the condo board went ahead and amended its bylaws in October 2006 to allow it access from Luzzi's terrace in order to wash the windows. All well and good, right?
Wrong. Funny thing about that stipulation phrase "permanently enjoined": It seemed to say that the board was enjoined (i.e., prohibited) permanently (i.e., permanently) from erecting scaffolding on Luzzi's terrace for the purposes of window washing.
That's how Luzzi saw it when he again denied the board access to his terrace for window-washing purposes. And that's how New York Supreme Court Justice Leland DeGrasse saw it, too, in May 2007 when he denied the board's motion for window-washing access. In fact, DeGrasse issued a permanent injunction against it. There's that tricky word again - "permanent." The appeals court, the state's highest, affirmed the ruling in June 2008.
Long story short, the condo board hired private-practice attorney David Bolton to suit Starr Associates for malpractice for "failing to obtain the intended purpose of the Stipulation." Starr blamed it on "the vagaries of the courts" and, anyway, they didn't "guarantee" the stipulation would produce any particular result.
But as Judge Melvin L. Schweitzer wrote in his Dec. 12, 2012, decision granting the condo board summary judgment against the attorneys, "This argument is specious. Defendants clearly believed that they had procured the sought-after result, and the Condominium was reasonable in believing that such was the case. Defendants' contention that the fault is with the courts for coming to a wrong conclusion concerning the wording of the Stipulation is equally specious."
Lesson for lawyers: Probably not a good idea to say it's all the judge's fault. And Starr tried to blame condo-board president Andrew Margulis, a lawyer himself, as well, saying Margulis was micromanaging. The court found no evidence of that, and in fact cited the last e-mail exchange between Margulis and Starr attorney Schieber, in which Schieber said Luzzi's counsel "has made all of my requested changes. I am signing and returning it to him — unless you have an issue." Margulis responded, "That's fine. I'll leave it to your judgment." As the court wrote, "[D]efendants' choice to blame Margulis and the Condominium for their own failings is unfortunate, to say the least."
Lessons for condo and co-op boards: Watch out for that word "permanently." And don't try to change the rules midstream, especially when doing so targets one homeowner specifically, unless there is seriously no other choice for the good of the condo or co-op. After all, and here's a new mantra to remember, there's more than one way to wash a window.
Lessons for condo and co-op boards: Watch out for that word "permanently." And don't try to change the rules midstream, especially when doing so targets one homeowner specifically, unless there is seriously no other choice for the good of the condo or co-op. After all, and here's a new mantra to remember, there's more than one way to wash a window.
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