Prior to Joan Messner's purchase of her penthouse apartment, her predecessor secured permission from the cooperative to enclose the terrace and convert it into a greenhouse.
In Messner v. 112 E. 83rd St. Tenants Corp ., Messner believed that she was entitled to damages for the co-op's failure to repair defects that allowed water to leak into her apartment and greenhouse. To that end, Messner filed a claim for breach of the proprietary lease, breach of the warranty of habitability, and further sought specific performance -- that is, an order requiring the co-op to allow the terrace area to be connected to the building's central heating system.
After the New York County Supreme Court found the co-op was not liable (since an indemnification agreement required Messner to effect repairs to those areas that had been altered by the prior owner), Messner appealed to the Appellate Division, First Department.
On appeal, the AD1 reiterated that because the co-op was under no duty to make the repairs, it could not be held liable for its refusal to do so.
While Messner alleged that the co-op breached the proprietary lease and the warranty of habitability by failing to heat the greenhouse, since that enclosed area was never a habitable portion of the apartment, the AD1 was of the opinion that the co-op was under no obligation to provide that service.
Furthermore, although Messner claimed that she had received permission from the manager to connect to the building's heating system, without any written proof, that argument was also given the cold shoulder.
Finally, the appellate court also determined that Messner could not amend her complaint to include a breach of fiduciary duty or fraud claim. In the absence of a fiduciary relationship before the closing, and in view of the co-op's pre-sale disclosure of a report which questioned the greenhouse's legality, the AD1 was of the belief that the entity's refusal to obtain a certificate of occupancy for the enclosed area was made in good faith and not subject to judicial scrutiny.
In the end, Messner was left out in the cold.
For a copy of the Appellate Division's decision, please use this link: Messner v. 112 E. 83rd St. Tenants Corp.