Water Damages in Co-op Unit

Q “I reside in a co-op apartment in the Bronx. For a whole year, I have incurred damages to my bathroom and kitchen ceilings from a washing machine in the apartment directly above mine, which is occupied by the shareholder’s subtenant. Each time a leak occurs, I notify my co-op board, but nothing is ever done to rectify the situation. I want to sue the shareholder for the damages. Under the proprietary lease can the co-op board be held responsible as well?”

—Waterlogged in the Bronx

A “Under the Warranty of Habitability applicable to all residential tenants in New York (including proprietary lessees in co-op apartments), the co-op has a non-delegated, non-waivable duty to maintain the shareholder's apartment in a habitable condition,” says attorneys Andrew J. Wagner and Bruce A. Cholst, of the Manhattan-based law firm of Rosen Livingston & Cholst LLP. “This obligation exists, even if the damages are caused by third parties, such as the upstairs shareholder, or his subtenant. The shareholder therefore would be entitled to an abatement of rent/ maintenance proportionate to the severity of the conditions, for so long as the conditions exist, and provided the co-op was notified of the conditions.

“The shareholder can either withhold his maintenance and seek a rent abatement in housing court if the co-op commences a nonpayment proceeding, or sue the co-op for a money judgment (but not both). Before resorting to litigation, however, the shareholder should warn the co-op in writing that if the situation is not properly addressed, that he will avail himself of legal remedies. The dates, times and a brief description of each incident should be maintained in a log, as well as the co-op's response, if any. All out-of-pocket expenses should be documented as well.

“An additional option is to commence an HP Proceeding in housing court. If an inspector issues violations based upon the damages to the kitchen and bathroom, the co-op will be ordered to correct the violations. If the violations are not timely corrected, the co-op will be assessed fines or penalties.

“The shareholder can sue the upstairs shareholder directly in small claims court for the damages sustained, if they do not exceed $5,000. Otherwise, there are other courts with higher jurisdictional limits, although they are more difficult to navigate if unrepresented by counsel.

“Finally, if the shareholder has a co-op owner's insurance policy, he should speak to his broker or a representative of the carrier to see if he is covered for this type of loss. If so, he should notify his carrier immediately each time there is an incident, and file a claim. The carrier may pay the repair costs and then go after the upstairs shareholder or the co-op for reimbursement.”