1050 Fifth Avenue, Inc.v.May

Appellate Division of the Supreme Court of New York, First DepartmentFeb 10, 1998
247 A.D.2d 243 (N.Y. App. Div. 1998)
247 A.D.2d 243668 N.Y.S.2d 600

Decided February 10, 1998

Appeal from the Supreme Court, New York County (Elliott Wilk, J.).

There are no issues of fact requiring a trial. Against clear documentary evidence, to wit, the offering plan, building plans and the proprietary lease, showing that the roof area in question is not part of the demised apartment, defendant offers only that it belongs to her because she has been openly and notoriously using it as a terrace for 30 years. This ignores the provision of the proprietary lease that any shareholder use of space outside the shareholder's apartment is pursuant to a revocable license granted by the owner (see, Jossel v. Filicori, 235 A.D.2d 205). In view of the foregoing, defendant's counterclaim for damages is without merit.

Concur — Milonas, J. P., Rosenberger, Williams and Mazzarelli, JJ.