Brady v. 450 West 31st Owners Corp.

Order and judgment (one paper), Supreme Court, New York County (Marcy S. Friedman, J.), entered March 26, 2009, to the extent appealed from as limited by the briefs, declaring that defendant 450 West 31st Owners Corp. is the owner of the transferable development rights granted or permitted to the parcel of land on which the cooperatively owned building is located, and that paragraph 7 of the second amendment to the offering plan does not convey or reserve those rights to plaintiffs, and that plaintiffs have the right to construct or extend structures upon the roof or above the same to the extent that may from time to time be permitted under applicable law, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered July 7, 2008, which, inter alia, granted defendants’ motions for summary judgment dismissing the complaint, unanimously dismissed as academic, without costs.

Paragraph 7 of the second amendment to the offering plan contains no express language giving plaintiffs ownership of or veto power over the building’s development rights or air rights (compare Jumax Assoc. v 350 Cabrini Owners Corp., 46 AD3d 407, 408 [2007] [“roof rights reserved for (plaintiff) in the 1986 offering plan”]). It reserves for plaintiffs the right, as permitted by the relevant laws, to construct or extend structures on the roof that may be built without the use of the building’s development rights. Concur—Mazzarelli, J.P., Acosta, Renwick and Freedman, JJ. [Prior Case History: 2009 NY Slip Op 30599(U).]