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110 Central Park South Corporation, Plaintiff-Appellant v. Board of Managers of 116 Central Park South Condominium

May 16, 2013

110 CENTRAL PARK SOUTH CORPORATION, PLAINTIFF-APPELLANT,
v.
BOARD OF MANAGERS OF 116 CENTRAL PARK SOUTH CONDOMINIUM, DEFENDANT-RESPONDENT.



110 Cent. Park S. Corp. v Board of Mgrs. of 116 Cent. Park S. Condominium

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 16, 2013

Mazzarelli, J.P., Saxe, Moskowitz, Manzanet-Daniels, JJ.

Order, Supreme Court, New York County (Ellen M. Coin, J.), entered on or about October 19, 2012, which, insofar as appealed from as limited by the briefs, in this action seeking, inter alia, the removal of a chimney flue extension attached to plaintiff's building, denied plaintiff's motion for summary judgment, unanimously affirmed, with costs.

The court correctly held that, where a chimney extension altered pursuant to Administrative Code of City of NY § 27-860 was no longer in use, the test for whether it had to be removed was whether it constituted a hazard or nuisance (see e.g. Lichter v 349 Amsterdam Ave. Corp., 22 AD3d 394 [1st Dept 2005], lv denied 6 NY3d 704 [2006]). As factual issues exist on those questions, summary judgment was properly denied.

We have considered plaintiff's remaining contentions, including its challenges to the standards applied by the motion court, and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 16, 2013

CLERK

20130516

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