The record supports Plaintiff's argument and testimony that some access was
permitted for limited purposes, including inspection and some repairs to the terrace,
between 2007 and 2013 (see e.g. Pl Exhs 24, 40, 42B, 48B, 49, 54, 54B, 56,
65A-C). However, it is equally clear that the Corporation, in an abundance of caution
given the acrimony and pending litigation between the parties, requested access to the
interior of the Apartment for the express purpose of making delineated repairs contained
within the Allcon proposals (see
12-14 E. 64th Owners Corp. v Hixon, 130 AD3d 425, 426 [1st Dept 2015]
["Once respondent advised the cooperative that she intended to make the repairs herself,
in May 2004, the cooperative could not have overridden her instructions by making its
own repairs."]). Indeed, Defendants asserted as a [*9]counterclaim a request for injunctive relief for access to the
Apartment to which, at that juncture, Plaintiff could have easily consented.
In response to the Corporation's efforts, Plaintiff either refused or demurred until
2016, when the work was ultimately completed. Significantly, the repairs which Plaintiff
ultimately allowed were nearly identical to those which she would not allow for several
years, thus diminishing the weight of Plaintiff's argument that the Corporation's proposal
was somehow deficient. Even if the completed repairs had been deficient — a
conclusion with no support in the record — Plaintiff could have sought recovery
for the result of any deficiencies.
Accordingly, the Court finds that the failure to correct the conditions in the
Apartment were attributable to Plaintiff, and therefore the abatement which would
otherwise have been justified must be denied for the period after the Corporation first