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New York Construction Law

Condo Board Lacks Capacity to bring Construction Defect Action for Failure to Follow Bylaws

Posted in Construction Contracts, Real Property Law 339-dd

gavelIn a July 2, 2014 Commercial Division decision by Justice Demarest, the court granted the defendant’s motion to dismiss the complaint. The plaintiff board of managers of a Brooklyn condominium commenced the action, alleging significant construction defects against the condo’s sponsor. Among the arguments raised in the defendant’s motion was that the plaintiff lacked capacity to sue at the time the action was filed by failing, in violation of the condo’s bylaws, to authorize the lawsuit at an appropriately noticed meeting of the condo’s board of managers. The court agreed, explaining that “the legal effectiveness of the actions of the Board depends upon the Board acting as a body within the constraints of the by-laws.” The court held that while the plaintiff undoubtedly had standing pursuant to Real Property Law § 339-dd (the Condominium Act), its failure to demonstrate that it acted as a board by voting to authorize commencement of the action necessitated a finding that it lacked capacity, and required dismissal pursuant to CPLR § 3213(a).

Board of Mgrs. Of the Clermont Greene Condominium v. Vanderbuilt Mansions, LLC, Sup Ct, Kings County, July 2, 2014, Demarest, J, Index No. 504278/2013