247 A.D.2d 243 668 N.Y.S.2d 600

1050 Fifth Avenue, Inc., Respondent, v Monica May, Appellant.

[668 NYS2d 600]

Order, Supreme Court, New York County (Elliott Wilk, J.), entered September 13, 1996, which, in a declaratory judgment action involving whether plaintiff cooperative corporation or defendant tenant/shareholder is the owner of the roof area adjacent to defendant’s apartment, upon the parties’ respective motions for summary judgment, declined to declare who was the owner of such roof area, unanimously modified, on the law, and upon a search of the record, to declare that plaintiff is the owner of such roof area, and to enjoin defendant from using such area as a terrace, and otherwise affirmed, without costs. Judgment, same court and Justice, entered March 27, 1997, which, insofar as appealed from as limited by defendant’s brief, dismissed defendant’s first counterclaim, unanimously affirmed, without costs.

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 *244notoriously 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 AD2d 205). In view of the foregoing, defendant’s counterclaim for damages is without merit.

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

1050 Fifth Ave., Inc. v. May
247 A.D.2d 243 668 N.Y.S.2d 600

Case Details

Name
1050 Fifth Ave., Inc. v. May
Decision Date
Feb 10, 1998
Citations

247 A.D.2d 243

668 N.Y.S.2d 600

Jurisdiction
New York

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