Braun v. 941 Park Ave., Inc.

OPINION OF THE COURT

Buckley, P.J.

This declaratory judgment action arises out of a Park Avenue cooperative apartment building and the uncooperative behavior of certain of its resident shareholders.

The building consists of three vertical “lines” of apartments. One elevator from the lobby of the doorman building serves the “B” and “C” line apartments, some of which are duplexes. On some floors only one apartment has a main entrance, on the others the two apartments’ doors are located on opposite sides of the long end of a 6-foot-by-13-foot vestibule landing.

Another elevator from the lobby serves the “A” line apartments and apartment IB, all of which are duplexes. Each “A” line apartment has a main entrance on its lower level, consisting of the “public” rooms, such as the living room and dining room, and a second entrance on its upper level, consisting of the “private rooms” or bedrooms. The elevator opens to a 6-foot-by-6½-foot vestibule landing, on which there is the entrance to one apartment’s public rooms, the door to the private rooms of the apartment below, and a service/fire exit to the stairwell.

The configuration of apartment IB, occupied by plaintiff Ariela Braun and her husband, differs from all the rest. Under the original building design, it was a mixed professional/residential unit, with an entrance to the professional suite directly from the street, and access to the upper level, the residential quarters (including the “public” residential rooms), via the “A” line elevator landing hallway on which was also situated the main entrance to apartment 2A, occupied by defendants David and Lori Moore. The Brauns converted apartment IB to full residential use, with the bedrooms on the lower level, and the entertaining rooms on the upper level. Thus, the main entrances of both apartments IB and 2A were on the same elevator landing, unlike the remainder of the “A” line apartments. However, even before apartment IB was converted, the family residing there and their guests were entitled to unrestricted access to the apartment from the vestibule shared with apartment 2A.

In 1983, the cooperative enacted House Rule 28, which provided that elevator vestibules would be “under the jurisdiction” of the apartment whose lower level (public rooms) was situated there. The occupants of such primary apartment would have the right to decorate the vestibule as they wished and would be responsible for its cleaning and maintenance. The occupants of the apartment whose upper level (bedrooms) was located on a landing, and their immediate family, would be permitted access through the vestibule, but other visitors would not be allowed without the consent of the primary apartment. In addition, the occupants of a nonprimary unit would be precluded from leaving umbrellas and other objects in the vestibule, or receiving mail or other deliveries there.

The occupants of apartments 2A and IB shared their common vestibule without incident until the Moores and Brauns moved in. The Moores, who bought their apartment in 1996 under the impression that they would have primary use of the landing at issue, redecorated the vestibule, with the approval of the cooperative’s board of directors, painting their own door a rich wood color, and the doors to apartment IB, the service/fire exit, and the elevator in matching bland tones. The Brauns, who acquired their apartment in 1997 with the belief that they would enjoy unfettered use of the vestibule, converted their unit from mixed professional/residential to exclusively residential, as noted supra.

After the Moores and the Brauns took up residency, they learned of each other’s conflicting views on vestibule rights. The Moores, who referred to the vestibule as their “front porch,” claimed primary jurisdiction and argued to the board that the hallway was too small to accommodate both apartments’ umbrella stands, tables, snow boots, uncollected packages, and other items. In addition, the Moores complained that visitors of the Brauns wandered into their apartment or rang their doorbell; the Moores suggested that the Brauns’ guests be sent from the lobby and around the corner to apartment IB’s street entrance, even though it would require such visitors to climb a steep staircase to reach the apartment’s upper-level “public” rooms. The Brauns asserted equal rights to share the vestibule, and took it upon themselves to repaint their front door so that it would no longer resemble a service entrance.

The board asked the neighbors to work out their differences, and attempted a mediation, but the dispute became more acrimonious. Eventually, the board enacted a modification to House Rule 28 to provide that the Brauns could receive guests via the vestibule, but only if “personally accompanied by a member of [the building’s] staff.” The board interpreted the unaltered portion of the house rule as prohibiting the Brauns from storing personal items in the area and as giving the Moores the exclusive right to design the decor, including the color of the doors; mail, newspapers, and other deliveries would have to be left for the Brauns at a third door, leading from their kitchen to the service/fire corridor.

Since the parties agree that the cooperative’s governing documents require that its house rules, including modified House Rule 28 at issue, be “reasonable,” and as such, must be reviewed under a standard of reasonableness, rather than the business judgment rule ordinarily applicable to cooperative board actions (see Ludwig v 25 Plaza Tenants Corp., 184 AD2d 623 [1992]), we need not reach the question of what language must be included in a proprietary lease drafted before Matter of Levandusky v One Fifth Ave. Apt. Corp. (75 NY2d 530 [1990]) in order to impose upon a cooperative board a requirement more stringent than the business judgment rule.

Due to the unique layout of apartments IB and 2A, a specialized house rule, particular to them, was not discriminatory, and indeed was necessary. However, that part of the board’s modified house rule placing the Brauns’ guests under interdict unless “personally accompanied by a member of Lessor’s staff” is unreasonable. The rule serves only to convey the impression that, alone of all the building’s residents, the Brauns’ friends and relatives are of such unsavory character that they will not be permitted inside without an escort. To the extent the Moores are concerned about the security or privacy implications of someone unknown to them wandering into their apartment, they have recourse to the self-help remedy of locking their door. As to the nuisance the Moores might suffer from another resident’s guests ringing or knocking on their door, there is a panoply of reasonable options that would not impair the market value of the Moores’ apartment or otherwise tarnish its luxury status. For example, a tasteful marker could be affixed to, or next to, the doors indicating the ap irtment numbers or the residents’ names. In the alternative, the Moores’ door might be painted one color, the Brauns’ another, and the service and elevator doors a third. Barring the existence of three respectable colors in the paint spectrum or a fashionable marker design, the Brauns and the Moores might wait in their respective entranceways for their guests during the interim between the doorman’s calling up and the elevator door’s opening. Insofar as the Moores might find it “embarrassing and disturbing” to open “the door to retrieve mail and hav[e] a stranger staring at them,” as they remonstrated to the board in one letter, even the one-man building escort they advocate would not shield their vision from other people in the hallway.

The remainder of the modified house rule, pertaining to the use of the vestibule for leaving strollers, wet umbrellas, tables, sundry receptacles, and deliveries, has a reasonable basis, considering the constricted area, notwithstanding the fact that the prior tenants were able to coexist in clutter-free harmony.

Because plaintiffs, the Brauns, in effect, merely sought a declaration as to their rights under the proprietary lease, they are not entitled to attorneys’ fees under the lease (see Salvato v St. David’s School, 307 AD2d 812, 813 [2003]; Spinale v 10 W. 66th St. Corp., 193 AD2d 431, 432 [1993]). In any event, the Brauns have not “prevailed” for purposes of attorneys’ fees under the proprietary lease.

Accordingly, the judgment of the Supreme Court, New York County (Walter B. Tolub, J.), entered June 29, 2004, which, insofar as appealed from, dismissed the complaint as against 941 Park Ave., Inc. and its board of directors and officers, should be reversed, on the law and the facts, without costs, the complaint reinstated and an amended judgment entered, declaring that that portion of the house rule pertaining to visitors is unreasonable and that the balance of the house rule is reasonable. The appeal from the order of the same court and Justice, entered August 28, 2003, should be dismissed, without costs.