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BOARDS ALLEGED FAILURE TO REPAIR TERRACE WAS CONTINUING WRONG UNDER STATUE OF LIMITATIONS A GANFER & SHORE, LLP CLIENT ADVISORY APRIL 2008

Where a Condominiums By-Laws require the Board of Managers to repair limited common elements of the building, and the Board fails to do so over a period of time, the failure is an ongoing wrong that does not become time-barred under the statute of limitations, according to the courts decision in Kaymakcian v. Board of Managers of Charles House Condominium, 2008 WL 714137, 2008 N.Y. Slip Op. 2487 (App. Div. 1st Dept Mar. 18, 2008).

The plaintiffs were Unit Owners who claimed that their apartment had been damaged by leaks originating in the terrace of the apartment above theirs.The By-Laws of the Condominium provided that the terraces were classified as limited common elements and that the Board of Managers was responsible for their repair.Plaintiffs alleged that they repeatedly complained to the Board concerning the leaks, but nothing was done to address them, and sued the Board of Managers for, among other things, breach of fiduciary duty.Because plaintiffs had been complaining about the leaks for more than three years, the trial court dismissed this claim based on New Yorks three-year statute of limitations on claims for money damages for breach of fiduciary duty.

The appellate court reversed.Because the Board of Managers had a continuing duty to repair the terrace, its failure to do so constituted a continuing wrong each day the failure continued, rather than a discrete event that started the statue of limitations running on the date of the original leak.The court noted, however, that plaintiffs claim for damages for breach of fiduciary duty would be limited to the damages occurring within the three-year period before the case was filed.

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