Defendant's third counterclaim seeks a declaration that defendant "has the right pursuant to the lease agreement to use its business judgment to unilaterally repair the premises without the consent of the plaintiffs."
Paragraph 4 (a) of the Proprietary lease states:
If the apartment or the means of access thereto or the building shall be damaged by fire or other cause covered by multiperil policies commonly carried by corporations owning "cooperative apartment buildings" in New York City (any damage to be repaired by the Lessor or the Lessee pursuant to Paragraphs 2 and 18, as the case may be), the Lessor shall at its own cost and expense, with reasonable dispatch after receipt of notice of said damage, repair or replace or cause to be repaired or replaced, with materials of a kind and quality then customary in buildings of the type of the building, the building, the apartment, and the means of access thereto, including the walls, floors, ceilings, pipes, wiring and conduits in the apartment. Anything in this Paragraph or Paragraph [*3]2 to the contrary notwithstanding, the Lessor shall not be required to repair or replace, or cause to be repaired or replaced, equipment, fixtures, furniture, furnishings or decorations installed by the Lessee or any of its predecessors in title nor shall the Lessor be obligated to repaint or replace wallpaper or other decorations in the apartment or to refinish floors located therein.
Paragraph 2 of the Proprietary Lease has been reprinted above as part of plaintiff's fourth cause of action. Paragraph 18 of the Proprietary Lease concerns repairs that are the responsibility of the Lessee.
Plaintiffs' unit was flooded in 2003, and the unit has yet to be repaired.