Page 13 - CooperatorNews July 2021

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COOPERATORNEWS —
JUNE 2021
13
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ENGINEERS, ARCHITECTS AND ENERGY CONSULTANTS
been tainted. At the end of the elections, I
asked what was the process for challenging
the elections in which nobody responded.
Please help me if you can.
—Disgruntled Shareholder
A
Says Matthew Schwarz, an
attorney at Geist Schwarz
and Jellinek in White Plains:
“Board of director elections are not allowed
to be ‘held open,’ but the meeting for elec-
tion can be adjourned to a later date where
the election can take place even if quorum is
not present (608 of the New York Business
Corporation Law). To make sure elections
are free from interference, it’s best practice
to close voting for the election as soon as all
votes have been cast and the ballots are in the
hands of the appointed inspectors of election.
“An inspector of election or multiple in-
spectors are appointed to oversee the tally
of the vote. Inspectors make sure elections
run smoothly by receiving and counting the
ballots, determining results, and addressing
questions regarding the validity of the pro-
cess. Inspectors are empowered to investigate
questions, challenges, or any matter upon the
request of any person present at the meeting
or any shareholder entitled to vote (611 of the
New York Business Corporation Law). If you
are unhappy with the results of the election or
if you think the election was not done prop-
erly, you can write a letter stating your objec-
tions to the inspectors of election to question
the process. A formal challenge to the elec-
tion would require you to commence an ac-
tion in Supreme Court (619 of the New York
Business Corporation Law).
“Typically, the election process is more de-
tailed and tailored to your co-op in its bylaws,
so my advice for you is to check your co-op’s
bylaws as well for more information on the
election process and how you can challenge
the election, as well as the rules for ballot su-
pervision.”
Loud Fan Is Driving Me Crazy
Q
Five years ago, my husband and I
bought an apartment with a small
deck, which is located on top of
my building’s parking garage. Th e prospect of
a little outdoor space is what sold us on this
place. For about eight months a year, it’s a
second living room, and I have worked really
hard to make it a beautiful place, investing
thousands of dollars in plants and furniture.
Th e garage recently installed a very loud
fan right underneath our deck. It blows car
exhaust up into not just our outdoor space,
but into our apartment, and is so loud it’s im-
possible to sleep through. When we’ve made
what we feel are reasonable complaints about
the situation to our managing agent, rather
than addressing the issue, the manager an-
grily wondered how I got his phone number
(which I called during business hours). Th e
board president also castigated me for phon-
ing him. What recourse do we have here?
—Pleading for Serenity
A
“New York law imposes an
‘implied warranty of habit-
ability’ on every residential
lease, and is a statute which even cooperative
boards are obliged to follow,” notes Lucas A.
Ferrara, an adjunct professor at New York
Law School, and a partner at Newman Fer-
rara LLP, a Manhattan law fi rm.
“If an apartment cannot be used for its
intended purposes, as a result of health or
safety hazards, a board may be found in
violation of that statutory protection. Fur-
ther, the shareholders can fi le common law
‘nuisance’ and ‘constructive eviction’ claims,
alleging a wrongful interference with the use
and enjoyment of their property. Any lawsuit
would seek, among other things, a main-
tenance reduction, or ‘abatement,’ together
with an order requiring the eradication of
the disturbances in question.
“Before pulling the trigger on litigation
however, shareholders should always use
their best eff orts to resolve any dispute ami-
cably, outside of court, to avoid spending sig-
nifi cant sums on legal fees and related costs.
Th ousands of dollars would be expended
on expert fees alone, as that independent
analysis would be needed to determine
whether or not the noise levels exceed legally
permissible limits and/or whether the exist-
ing conditions pose a health or safety threat
to the building’s occupants.
“Even aft er that substantial investment,
there can be no guarantee the shareholders
will prevail in court. A judge would need to
fi nd that the board violated the law, acted
unreasonably, or otherwise abrogated its
fi duciary responsibilities.
“Ultimately, considering the risks and
costs, and particularly given the hostility and
aggravation that a lawsuit against neigh-
bors engenders, it might be best for these
shareholders to put their unit up for sale
and fi nd another (quieter and safer) place to
call home. If that is not a viable option, an
attorney will review the most cost-eff ective
manner in which to proceed.”
n
Q&A
continued from page 5
Disclaimer: Th e answers provided in this Q&A
column are of a general nature and cannot
substitute for professional advice regarding your
specifi c circumstances. Always seek the advice of
competent legal counsel or other qualifi ed profes-
sionals with any questions you may have regard-
ing technical or legal issues.
Write to CooperatorNews
and we’ll publish your
question, along with a response from one
of our attorney advisors. Questions may
be edited for taste, length and clarity.
Send your questions to: darcey@coopera-
tornews.com
Q&A