Condo Board Not Responsible for Smoke Condition in Unit Owner's Apartment

Plaintiff, a condo unit owner, sued landlord condominium corp. and its board of managers for nuisance and breach of contract. Beginning in 2015, plaintiff noticed a significant smoke condition in his unit and on the building's seventh floor. The smoke was emanating from the fireplace in the penthouse unit above plaintiff's unit. Plaintiff claimed that this smoke caused him physical discomfort, and that he reported this issue to the landlord numerous times. Furthermore, beginning in March 2021, plaintiff noticed that concrete mortar and water had been raining down from the upstairs unit balcony above his, causing damage to plaintiff's balcony, specifically to the balcony's glass and metal railing. The court granted the condo corporation's motion to dismiss plaintiff's claims. 

First, plaintiff claimed that the building's managing agent breached the management agreement by failing to monitor the upstairs unit balcony and the condominium's flue and ventilation systems. However, plaintiff's complaint states that the management agreement is a contract between the defendants, and does not plead that plaintiff was a party or beneficiary in any way to the management agreement. So, this claim must be dismissed for lack of standing. 

Second, plaintiff claimed that the condo board breached the condominium bylaws by failing to make necessary repairs to balconies to his unit and the upstairs unit, and to repair the condominium's flue and ventilation systems. Landlord showed that the alleged conditions in plaintiff's balcony were not structural or related to water leaks, and thus, the board wasn't responsible under the condominium bylaws to make the necessary repairs. Instead, plaintiff was responsible for these repairs under the bylaws, as they involve non-structural, ordinary repairs to the balcony. The board wasn't in breach of the condominium bylaws for failure to rectify any smoke-related conditions caused by the fireplace in the upstairs unit. 

Finally, plaintiff failed to raise any triable issue of fact as to whether the smoke condition was caused by landlord's actions or failure to act.  

Etkin v. Sherwood Residential Mgt LLC: Index No. 655734/2021, 2024 NY Slip Op 33801(U)(Sup. Ct. NY; 10/8/24; Bannon, J)