Case Notes in


First published: Oct 2022
Brightwater Towers Condominium v. Vitebsky, Zilberman and Sosina

So what can a board do to prevent a handful of dissidents from spreading nasty and often anonymous statements insinuating that it is acting improperly? Communication is the key, since the number one complaint of dissidents is that the board is not communicating with shareholders or unit-owners. Quarterly newsletters are one way to keep residents abreast of the operations of the building and the decisions of the board. But the best way may actually have been provided by the pandemic — virtual meetings. The sniping by a few owners most likely have very little effect if all residents hear directly from the board, and often.

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First published: May 2022
Court Dismisses Treasurer’s Defamation Claim Against Board President

While the statements made during a board meeting may be protected by the common-interest privilege to allow for the free flow of information between attendees, evidence of malice or reliance on knowingly false statements or any statements motivated by ill will or spite will not be protected and may expose the individual making such statements to liability. However, because members of co-op and condominium boards are subject to qualified privilege, it is difficult for them to be found liable for defamation. By the same token, it is difficult for them to obtain favorable results in connection with their own defamation claims. See Pusch v. Pullman, 2003 NY Slip Op 51759(U) (N.Y. Sup. Ct. N.Y. Cnty. Nov. 5, 2003) (an action related to the famous Pullman case re board discretion in determining objectionable conduct, 40 W. 67th St. v. Pullman, 100 N.Y.2d 147 (2003)).

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First published: Feb 2021
Keeling v. Salvo, et al.

It is wise to recognize that although everyone has a right to express opinions, there is often a fine line between derogatory opinions and defamation. No one should assume that the court will agree with your analysis of your own statements. Further, the “common-interest” privilege should not be relied upon when making derogatory remarks. Spewing falsehoods, innuendos or even dangerously reckless statements is not only inappropriate, it can also be very costly if the court rules against the party making such statements. It is by far a better approach to carefully consider any statement about another person before uttering it. Your thoughts, including your criticisms, should be constructive, not belligerent, and they should be made in the spirit of cooperation. After all, people living and working in a housing community should have the same goal: to govern and operate the community in an appropriate and efficient manner for the good of all of the residents. Tossing verbal grenades rarely helps achieve this goal.

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First published: Dec 2015
Trump Village Section 4 and Igor Oberman v. Yuliya Bezvoleva Aka Julia Bezvoleva, Inna Yeselson, Josef Stalin, Aborigen,

As the appeals court told us in Levandusky v. One Fifth Avenue Apartment Corp. 25 years ago, cooperatives and condominiums are quasi-governments – “a little democratic sub-society of necessity.” The board makes decisions for the building and, thus, the apartment owners. And if an owner does not like the way the building is being run, there are things he or she can do, all within the dictates of a democracy, such as run for the board or propose a slate or complain to management and the board. Depending on the nature and severity of the alleged issue, he or she can call a governmental agency to complain about building conditions or even start a lawsuit. If owners want to solicit information and support from other apartment owners, they can write letters, and even if the owners’ statements are questionably defamatory, they may be protected by the common-interest privilege if the complaining owners keep it “all in the family.” In other words, the common-interest privilege may apply if the information is communicated only to those within the community who have an interest in those same common issues. What a complaining apartment owner cannot do, however, is make (arguably defamatory) assertions on the internet or in a publication for all to see. The defendants in this case raised just about every possible defense to the publication (and alleged authorship) of the statements on the website, and the court analyzed, and disposed of, every argument. On a final parenthetical note (although perhaps not really beside the point), we do not know why an apartment owner would want to make public some of the claims the defendants are alleged to have made here. Even if the statements are patently true and accurate in all respects, those kinds of statements might be expected to have a negative effect on resale prices. It’s something to consider before an apartment owner gets up on a soapbox.

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First published: Nov 2003
Simon v. 160 West End Avenue Corp.

Here, the plaintiff was without a remedy. Not only was the board’s action within its discretion, but also the statute of limitations for defamation had run. In addition, the purchasers failed to demonstrate that under applicable law they were members of a protected class which would shift to the co-op the burden of proof to justify the board’s rejection.

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