First published: Sep 2025
A Drill Too Far
TAKEAWAY This case is a warning for co-op and condo boards: even if bad renovation work was done by a previous owner, a new owner can still try to hold the board responsible if problems aren’t addressed. Here, the court allowed claims about noise and water leaks to move forward, finding they could amount to a nuisance tied to earlier faulty work. The decision shows why boards should always require proper alteration agreements for renovations and the importance of requiring that future owners assume the continued obligations of a previous owner under such alteration agreement.
310 APT. CORP. V. MERLINO
WHAT HAPPENED In the early morning of Monday, December 4, 2023, at 310 West 106th St., a classic pre-war, 17-story co-op, the new shareholders of apartment 7A and a helper loaded various kitchen cabinets onto a dolly and brought them through the lobby and up the freight elevator into their apartment. Within an hour, they came running back down to the lobby to inform building staff they had struck the gas line with an electric power drill, and it was leaking. The FDNY was called, and the building’s super shut down the co-op’s main gas line. After the gas leak occurred, the co-op learned that the kitchen in 7A was being renovated, although no alteration agreement had been signed and a licensed insured contractor was not being used. The gas shut down lasted nearly a year, affecting everyone’s ability to cook and, for a portion of that time, to use the laundry facilities in the building. Restoring gas to the building was extremely expensive, and the board turned to the defendants for compensation. It also sought an order prohibiting the defendants from performing any future alteration work in the apartment without its prior approval.
The 7A shareholders countersued, claiming that the co-op had long known about unsafe conditions in the apartment, stemming from a prior unlawful subdivision that left thin walls, faulty plumbing, mold, and noise issues. They argued they were not negligent, since the board president allegedly told them no approval was needed for their work, the superintendent gave guidance, and the gas line was only struck because of prior water damage the board failed to address.
IN COURT The co-op board asked the court to throw out the defendants’ counterclaims, saying the proprietary lease clearly required written board approval and a formal alteration agreement before any work started, and that the board wasn’t responsible for the old subdivision work in the unit because it was performed by the prior shareholder. The court, however, allowed some of the tenants’ claims to continue—specifically breach of contract, nuisance, and breach of the warranty of habitability—because the tenants’ allegations about thin walls, bad plumbing, leaks, and noise were enough to move forward. But the court dismissed two claims: quiet enjoyment (since the tenants never abandoned the apartment) and fiduciary duty (because it was basically the same as the breach of contract claim).
COUNSEL for the co-op SETH CHOSET, NICHOLAS IANNUZZI Boyd Richards Parker & Colonnelli SCOTT LOFFREDO, NITISHA BISHNOI Belkin Burden Goldman; for the 7A shareholders and respondent GARRY POGIL Law Office of Garry Pogil; Justice Paul A. Goetz
