40 West 67th St. v. Pullman: Notes + Questions

Notes and Questions 

1. For further background on this dispute, including quotes from David Pullman himself, see Dan Barry, Sleepless and Litigious in 7B: A Co-op War Ends in Court, N.Y. TIMES (June 7, 2003), available at https://nyti.ms/2leMd9c. 

2. What aspect of the Court of Appeals’ analysis constitutes “heightened vigilance”? 

3. The Restatement does not adopt the business judgment rule for review of board actions, instead applying a “reasonableness” standard. The Reporter’s comments suggest that the reasonableness of an enforcement action will depend on any number of factors, including its proportionality to the resident’s offensive conduct (e.g., no $1,000 fines for a single instance of failing to sort an aluminum can for recycling), the logical relationship between the offensive conduct and the remedy (e.g., no revocation of parking privileges for breach of a pet restriction), and whether the resident was provided with sufficient notice and opportunity to respond to the managers’ complaint before any enforcement action was taken. See Restatement § 6.8 & cmt. b. Elsewhere the Restatement states that board members and officers have duties of care, prudence, and fairness toward members of the community. Id. § 6.13 & cmt. b. Is the Restatement position consistent with Pullman? If not, how does it differ? 

4. The Court of Appeals did not consider the question whether the provision in Pullman’s proprietary lease allowing the cooperative to kick him out on grounds that he was “objectionable” should be enforceable as a general matter. If it had, what do you think would have been the result? Does it matter which standard—reasonableness or the more permissive standard applicable to CC&Rs—applies? Which do you think ought to apply to the covenants in the proprietary leases of a cooperative? 

5. Say you live in a residential neighborhood unencumbered by any restrictive covenants. Could you and your neighbors come together and decide to sell an unfriendly neighbor’s house over his objection? If not, what additional facts make it possible for the residents of 40 West 67th Street (a tudor-style luxury pre-war apartment building half a tree-lined block from Central Park) to vote Pullman out of the apartment he bought in their building? 

6. Common-interest communities are sometimes likened to miniature private governments. (Recall Norman’s description of condominium owners as “a little democratic sub society.”) The analogy holds up somewhat: they hold elections, the elected leaders can pass rules that all are bound to follow; they can assess fines for breaking the rules; they can levy the equivalent of taxes to fund common services. There are, of course, important differences—not least failure to adhere to the principle of one-person-one-vote. But Pullman suggests another distinction: could any government officer or entity in the United States do to one of its citizens what Pullman’s neighbors did to him? If not, what are the limits on government authority that would prevent such action, and what are the justifications for those limits? Do these justifications carry less force in the context of the enforcement of servitudes by the managers of a common-interest-community?