United States: Don't Mess With A Senior Citizen/Tenant (Whose Son Is An Attorney)

Phyllis Kossoff, a 92-year-old woman, lived in an apartment at 910 Fifth Avenue in Manhattan since 1966. After the building was converted into a coop, Kossoff and her husband became proprietary lessees of their unit. A recent dispute arose about whether Kossoff or the coop was responsible for replacing and paying for the replacement of the balcony windows and sills of the unit.

On March 22, 2018 Kossoff was approached by the coop and asked whether she was interested in selling her apartment to another shareholder who lived on her floor. Kossoff said she was not interested in selling her home of over 50 years.

Four days later, on March 26, 2018, Kossoff was informed that her balcony windows constituted an unsafe condition and had to be replaced pursuant to new Facade Inspection & Safety Program.

The board alleged that, after they notified her about the need for the replacement, Kossoff acknowledged that she was responsible for the work and repeatedly assured the board that she would get it done. The coop told Kossoff that the board had retained an engineering company that would charge $3000 to draw up plans for the window replacement and that the building's management company would charge $250 per hour for any services relating to the replacement .

Kossoff insisted that she never agreed or obligated herself to replace the windows. Her attorney (her son) claimed that he attempted to engage in a series of good faith communications with the board about the matter on behalf of his mother. Kossoff claimed that because she wanted the dispute resolved quickly and amicably, she was willing to pay the engineer and consultation fees for the window replacement (the $3000 amount) and cooperate with board to ensure the replacement process was moving along. But Kossoff argued that she never agreed to pay the entire cost of replacing the windows.

According Kossoff, the board was unresponsive to her communications, thereby stalling the replacement process and leaving her unable to take any action in moving it forward. The coop is within a Landmark District and any work done on windows required a permit from the Landmark Preservation Commission and the Department of Buildings. Kossoff claimed that,  because of the unresponsiveness of the coop and because she could not act without the permission of the board, complicated by the landmark issue, she was unable to make any progress on the window replacement for the next several months.

The board insisted that it tried to communicate with Kossoff and allowed her son to submit plans and specifications for the window replacement, which he purportedly failed to do. Because several months had passed without any resolution and because the coop feared receiving a violation from the New York City Department of Buildings for unsafe conditions, the board decided to unilaterally act and remove Kossoff's balcony windows. And inserted insulated aluminum panels and boarded up any openings with plywood. The "windows" remained in that condition.

On November 1, 2018, the board sent Kossoff an itemized bill in the amount of $55,040.30 for work done to remove and board up the windows. The bill included $22,407 in legal fee. Litigation ensued.

Kossoff wanted the coop to remove the plywood covering her window frames and install windows and sills in a material that is customary to the building. Kossoff claimed that it was the board's obligation to replace her windows pursuant to Article 18(a) of her lease. She insisted that the coop had purposefully delayed replacing her windows in an attempt to scare her into vacating the premises so that another shareholder could purchase her apartment.

The board claimed that Article 18(a) only obligated the coop to repair windows not replace them—and, because the coop was not obligated to replace windows, the cost of replacement was Kossoff's responsibility. And the coop  denied Kossoff's assertions that the board was attempting to push here to vacate the premises are meritless.

Article 18(a) of the lease stated in relevant part that:

  • "[T]he Lessee  shall keep the interior of the Apartment (including interior walls, floors and ceilings, but excluding windows, window panes, window frames, sashes, sills, entrance and terrace doors frames and saddles) in good repair, shall do all of the painting and decorating required for his apartment, including the interior of window frames, sashes and sills and shall be solely responsible for the maintenance, repair and replacement of plumbing, gas, and heating fixtures and equipment such as refrigerators, dishwashers, air conditioners, washing machines, ranges and other appliances, as may be in the apartment...The Lessee shall be solely responsible for the maintenance, repair and replacement of all lighting and electrical fixtures, appliances, and equipment, and all meters, fuse boxes or circuit breakers and electrical wiring and conduits from the junction box at the riser into and through the Lessee's apartment."

The coop argued that that Article 18(a) made a distinction between "repair" and "repair and replacement." The board claimed that where a repair was required, Article 18(a) explicitly provided that it was the coop's obligation to make the repair. However, where a replacement was required, the board insisted that Article 18(a) placed the burden of replacement on the lessee. The coop argued that, because the dispute related to replacement and not repair of windows, Kossoff was responsible for the costs.

Kossoff argued that Article 18(a) did not specify who was responsible for replacing windows—and that the lease made it clear that window repairs were the coop's' responsibility. Kossoff pointed out that the act of replacing windows was not mentioned anywhere in the lease. And claimed that, in the absence of an express requirement, the coop was responsible for the replacement pursuant to its non-delegable duty to keep the premises in good repair.

This Court found that the coop was required to remove the plywood covering and replace the windows—and rejected, as unconvincing the board's distinction between "repair" and "repair and replacement" as it pertained to windows. Article 18(a)'s only mention of windows was to say that the tenant need not repair them. Window repairs were the sole responsibility of the coop. Because the windows and sills were the coop's responsibility, the coop was responsible for them. The board must maintain the windows, and if they are no longer deemed safe and the coop no longer repair them, then the coop must replace them.

The lease only obligated the lessee to replace "plumbing, gas, and heating fixtures ... lighting and electrical fixtures, appliances, and equipment, and all meters, fuse boxes or circuit breakers and electrical wiring." The lease did not include replacement of windows to that list of lessee's obligations.

A proprietary lease is interpreted using general principles of contract law. In instances of ambiguity in a  lease, the ambiguity should be interpreted as against the drafter of the document. In this case the drafter of the document was the lessor. If there was ambiguity about who was responsible for window replacement in Article 18(a), the lease must be interpreted as against lessor/drafter and the coop has the burden of replacing the windows.

The Court understood that, while the board was simply trying to conform to current safety standards by having the windows replaced, the responsibility of replacing the windows did not fall upon the tenant. Although the lease did not expressly indicate who was responsible for window replacement, the language of the lease, general contract principles, and common sense warranted the conclusion that the coop must bear the responsibility of replacing the windows. If the landlord, the drafter of the lease, wanted the tenant to be responsible for replacing windows, it should have said so in the lease.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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