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How Bad Does Your Board Have To Be?

“I’m being harassed,” the caller says – the latest of many.  “The board is out to get me, AND I’M NOT GONNA TAKE IT” It’s hard to know whose side the truth is on in these situations, not that it really matters because even if your board is harassing you, there may not be much you can do.

That’s because there’s a kind of a double standard. If you’ve been good and been reading, you know that if you’re bad – objectionable as it’s called in High Rise Society speak – the board can kick you out. (See, How Bad Do You Have To Be?) Owners have been shown the door for pounding on neighbors’ walls and shouting obscenities, repeatedly leaving dog poop around for others to smell, defacing building property and harassing security guards. Admittedly that’s some pretty bad stuff, though the real issue is who decides whether you’re good or bad.

But what if it’s the board that’s harassing you Do you have any recourse?

Take the case of an Upper West Side co-op owner whose payment record had been so screwed up by reason of the fact that her checks had been forged and re-deposited that her account was in arrears for four years, her credit rating was wrecked, she couldn’t get financing for her business, and the board tried to evict her for non-payment, when it’s own record keeping was the problem. As a result she suffered such anxiety that she almost went over the edge and developed lichen planus, a rare skin disease. Sorry, that’s not enough to show a pattern of ongoing harassment to make out a claim for infliction of emotional distress.

Then there’s the condo owner who said board members harassed him by sending round memos accusing him of doing all sorts of bad stuff when he was on the board.  He got nowhere.  Another said that after he complained about the paint job to his deck the board harassed him by issuing violations against him and his cat, and ridiculing him in front of others at meetings. Yet another claimed that as a result of his refusing to pay what he said was an outrageous assessment, the board embarked on a plan to harass, annoy, and disparage him and his family

None of these owners succeeded in nailing their board for harassment, and you won’t either, because even though harassment isn’t right, it’s not recognized as wrong under the common law. And because board members are protected by the Business Judgment Rule, you have to show not only that they did something bad but also that what they did was in bad faith or fraudulent – not an easy road to hoe.

But if you rent you have a right to sue for harassment because a special law was passed specifically saying you can in order to protect tenants from landlords who did nasty things to get them out so they could turn the building into profit generating co-ops and condos.  The lawmakers figure once you join the ownership ranks you don’t need to be protected, which is why co-op and condo owners are excluded from the law, leaving you right back where we started.  When it comes to board members, harassment isn’t bad enough.

For the details on harassment, see:

  • Bisk v. Cooper Square Realty, 2008 NY Slip Op. 31984(U), July 11, 2008, Sup. Ct. N.Y. Co.
  • Simms v. Marquez, 2008 NY Slip Op. 3168(U), May 21, 2008, Sup. Ct. N.Y. Co.
  • Gibbery v. Timber Ridge at Holbrook Home Owners Assn. Inc, 2008 NY Slip Op.31201(U), April 23, 2008, Sup Ct. Suffolk Co.
  • Baum v. Ragozzino, 2009 NY Slip Op. 50566(U), March 31, 2009, Sup. Ct. Rich. Co.

Also have a look at: Prometheus Realty v. City of New York, 2009 Slip Op. 31742(U), July 31, 2009, Sup Ct. N.Y. Co. (Upholding the Tenant Protection Act against a challenge to its Constitutionality by a group of landlords.)

To access these cases, click here, then under Search By Citation enter the case date and number.

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