PECKOLICK v. 135 WEST 17TH STREET TENANT CORPORATION (2000)

Order, Supreme Court, New York County (Sheila Abdus-Salaam J.), entered June 28, 1998, which, upon the parties' respective motions for partial summary judgment, insofar as appealed from, declared that defendant residential cooperative cannot specially assess plaintiff tenant/shareholder for the portion of the cost of a total roof replacement apportionable to the portion of the roof that was made part of plaintiff's leasehold at the time of conversion and to which she has a right of exclusive use, unanimously affirmed, without costs.

Plaintiff's obligation under the offering plan to repair and maintain the portion of the roof to which she has a right of exclusive use does not involve an obligation to pay for the same portion of the cost of a total roof replacement.   The replacement of the roof, as opposed to the repair and maintenance of plaintiff's section, is a major improvement that inures to the benefit of all of the shareholders (cf., Matter of SIN, Inc. v. Department of Fin., 71 N.Y.2d 616, 620-621, 528 N.Y.S.2d 524, 523 N.E.2d 811).   This reading of the offering plan is reinforced by the express and unambiguous clause in the proprietary lease requiring that special assessments “for any repair, alteration or improvement to the corporate property” be on a pro rata basis determined in the same manner as maintenance, i.e., in accordance with the shareholder's percentage of ownership in the corporation.   To the extent relevant herein, plaintiff's roof rights and obligations were presumably taken into account in the allocation of shares to the various apartments.   Nor does the record, including that made on defendant's motion to renew, contain any factual material tending to show that the entire roof needed replacement because of plaintiff's failure to repair and maintain her section of it, such that a claim for “additional rent” might be justified.   We have considered defendant's other arguments and find them unpersuasive.

MEMORANDUM DECISION.