VALE v. ISAACS (2008)

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered September 21, 2007, which denied plaintiff's motion for partial summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

In this litigation between owners of cooperative apartments at Hampshire House on Central Park South, plaintiff failed to raise issues of fact precluding summary judgment for defendant concerning the application of the lease to the parties' right to use the terrace.   Pursuant to the identical proprietary leases at hand, “A lessee of an apartment having direct access to a terrace shall have and enjoy the exclusive use of the portion of such terrace which immediately adjoins the apartment.”   Plaintiff failed to show she had any “direct access” to the terrace.   Defendant, on the other hand, did establish his direct access to the terrace through the door in his apartment immediately adjoining the terrace.   Even assuming there is ambiguity in the proprietary lease with regard to the parties' rights to the use of the terrace, defendant established as a matter of law that he has the exclusive right to its use, supported, inter alia, by evidence from his predecessors that they had exclusive use of the terrace (cf. Washburn v. 166 E. 96th St. Owners Corp., 166 A.D.2d 272, 564 N.Y.S.2d 115 [1990] ).