Case Notes in


First published: Dec 2024
A Win for the Climate

TAKEAWAY Nearly 18 months passed between the filing of the Glen Oaks complaint and the court’s dismissal of it. One of the more interesting things about the Glen Oaks lawsuit is how much the ground had shifted under the plaintiffs’ feet during that period. For example, New York State released its final Scoping Plan under the CLCPA in December 2022, which, among other things, included an entire chapter highlighting the importance of coordinated action with local jurisdictions. “Partnership with local governments,” explained the Scoping Plan, “is a keystone of the State’s clean energy, adaptation and resilience, and greenhouse gas (GHG) emissions mitigation strategies” – a direct (if implicit) rebuke to plaintiffs’ assertion that the CLCPA pre-empted the CMA. As noted above, the Glen Oaks court was convinced that the two laws were not only consistent but should be read together. In addition, the Department of Buildings issued two sets of rules during the interim period that filled in many of the “vague” provisions of the law. For example, under the first set of rules issued in 2022, the DOB incorporated 61 different use-and-occupancy subgroups with different emissions factors for each, hopefully leading to more equitable and realistic emissions targets for covered buildings. With the newly issued “good faith efforts” rules, the DOB spelled out a detailed process by which building owners could seek to reduce or eliminate the annual fines issued for noncompliance during the 2024–2029 period. These rules underscore New York City’s position, contra the Glen Oaks plaintiffs, that building owners should have multiple viable compliance pathways short of just accepting massive annual fines. This decision is by no means the last word on legal challenges to Local Law 97. Not only is it expected that the Glen Oaks plaintiffs will appeal, but there will likely be new legal challenges once the DOB starts issuing fines to non-complying buildings in 2025. Nevertheless, this decision is a landmark in legitimating robust climate policy at the local level.

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First published: Mar 2018
Minkin v. Board Of Directors of the Cortlandt Ridge Homeowners Association

Assessing fines may be the best way to enforce rules and policies. The declaration and bylaws were unambiguous. A court may look at the offering plan as an aid to interpretation only when governing documents are unclear or inconsistent. The declaration and bylaws are the contract between the board and owners. Finally, in the lower court decision, the court recognized that this decision would affect all unit-owners, not just the one who was a party to the suit. Although other homeowners could sue on the same theories (and could raise additional bases for their claims), for practical purposes these rulings decided the issues before the court for all homeowners.

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First published: Feb 2014
Tucciarone v. The Hamlet on Olde Oyster Bay Homeowners Association

While this case involves an HOA, and not a co-op or a condo, it is instructive. The HOA board knowingly placed the Tucciarones in a catch-22 situation. From the decision, it appears that the only way for the couple to stop the imposition of the fines and penalties, including the denial of car access, was to make a deal with their next-door neighbor. We cannot tell from this decision whether the couple or the neighbor was being reasonable (if either of them was), but we are not sure it makes a difference. The way in which the board chose, apparently, to force a settlement, placed the Tucciarones in an untenable position. Although the court referred to the board’s behavior as possibly “unconscionable,” identifying such activity as an exception to the Business Judgment Rule, it appears that the court was actually speaking about a component of the good faith standard imposed by the rule. In other words, it appears that the owners were able to demonstrate that the actions taken by the board were in bad faith so that the rule would be inapplicable and the court need not defer to the board’s determination. From the facts recited in this opinion, it appears that the board consciously placed the Tucciarones in a no-win position. Indeed, according to the decision, the board admitted that “the purpose of the new directive is [to] obtain remediation, i.e., settlement of the Fadlon Action, of the bamboo infestation.” An important factor is that the board plainly did not follow its own rules. There is no question that it had to comply with its governing documents in any treatment of unit-owners. In instances such as this, strict compliance is required and it is advisable that a board have – and produce to the court – the paperwork to demonstrate it has done precisely that. In this case, the board apparently failed, and this alone was likely a basis for the relief granted.

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