First published: Dec 2025
Did No One Notice?
TAKEAWAY The key lesson is that no matter how outrageous the facts seem to be, a party asking for summary judgment, which is a request for the judge to decide the case without a trial, must be able to convince the court that there really are no issues of fact. Courts have long required that anyone seeking summary judgment present solid, detailed evidence showing that they are entitled to win as a matter of law and that all meaningful factual questions have been resolved. If the moving party cannot meet this high standard—because the request is premature or the evidence is incomplete—the court has no choice but to deny its motion for summary judgment.
WHAT HAPPENED Twenty eight years ago Smith and Cuchel bought a one-bedroom, 1253 sq. foot, penthouse apartment at The Tribeca, a condominium comprising 4 buildings, with exclusive access to private outdoor space of around 1040 sq. feet. Smith got elected to the board, and in 2006 he and Cuchel requested to enclose their roof deck and incorporate the adjacent common roof area to create an enlarged duplex apartment. The board approved, subject to the payment of $20,000 and alteration agreement terms, which included provisions for an engineering review and requirements that all work must be in compliance with applicable law. Payment was made, but the alteration agreement was never signed. In 2008, Smith became board president, a position he held for a decade. During this period, apparently unbeknown to anyone, Smith built an additional three stories above the one initially proposed and installed a rooftop pool. In 2018 Smith was ousted and the newly constituted board set about resolving all open issues. In the course of this work it inspected the penthouse and discovered the overbuild. It also learned that nine violations had been issued by the Department of Buildings, one of which prevented the renewal of the Temporary Certificate of Occupancy. In 2021, the condominium sued Smith for a host of wrongdoings. It claimed that the construction dramatically exceeded the scope of the plan submitted to the board; that Smith used his position as president to conceal the real extent of the project; that the plans submitted to the Department of Buildings misrepresented the extent of the project; that the unauthorized work triggered requirements that the building perform Local Law 11 work, construct a second means of egress from the building and install standpipes; that the construction caused an increase in real estate taxes; that the building’s gas usage increased because Smith had installed a pool heater, fireplace and grill; and that all this caused an 18 month gas shutdown. Additionally, the condo requested that Smith be compelled to demolish the unauthorized construction (or in the alternative, allow the condo to do so), and included in its claims against Smith causes of action for damages (including expenses and fees), unjust enrichment, fraud, continuing fraud, and breach of fiduciary duty.
IN COURT The condo asked the judge to rule in its favor without a trial on its first four claims, but the judge refused because there were too many open questions of fact. The court noted that the original alteration agreement—the key document that would show what work was actually approved—is missing, so it cannot determine what Smith was originally allowed to build. The judge also found that it was unclear whether all of the building code violations were caused by Smith’s construction, since Smith argued that some issues were the result of a Department of Buildings “special audit” that prevented him from making corrections. In addition, the court held the condominium had not provided enough evidence to prove the real estate tax increases were caused by Smith’s work rather than other improvements in the building. Because of these unresolved factual questions, the judge denied the condominium’s request for summary judgment, and thus the case must continue to trial.
COUNSEL for the condo ERIC P. BLAHA, JARED P. TURMAN, Smith Buss & Jacobs; for Smith and Cuchel EMILY REISBAUM, ASHLEIGH HUNT, NORA NIEDZIELSKI-EICHNER, ISAAC ZAUR, ALEXANDER DAVID BERNSTEIN Clarick Gueron Reisbaum, ILENE GURALNICK, Smith Buss & Jacobs; Justice Lori S. Sattler
