Morrison Cohen Files Emergency Action to Block Unauthorized Condominium Development Rights Transaction

On August 7, 2026, Morrison Cohen filed an action in the Supreme Court of the State of New York on behalf of R&F 44th Street LLC, owner of Unit 6A at The Number 5 Condominium, and RDAC 8 LLC, holder of a duly recorded mortgage on the unit, seeking emergency injunctive relief to prevent a rogue Board of Managers purporting to act on behalf of the condominium from contracting around the unit owners’ unanimous consent rights regarding the sale or transfer of development rights belonging to the condominium.

The action challenges the Board’s authority to enter into a transaction with an affiliate of SL Green involving the sale and transfer of development rights, including easement and bonus rights, and the effectuation of a zoning lot merger without seeking unanimous consent from all the unit owners. Because the Board cannot get unanimous consent, it is seeking instead to amend the condominium’s governing documents by a supermajority vote at a special meeting of unit owners. The proposed amendments would give the Board exclusive authority to sell, transfer, or otherwise dispose of the condominium’s development rights in its sole discretion.

Plaintiffs contend that the proposed amendments would “transform vested property and consent rights collectively owned by the unit owners into powers exercisable unilaterally by the Board” and that changes affecting the condominium’s common elements require the unanimous consent of the unit owners, not merely a supermajority vote. Plaintiffs also question whether the Board is properly constituted, as there has not been an election of Board members in years. 

On August 12, 2026, Judge Waterman-Marshall heard oral argument on the request for immediate injunctive relief, including restraining the Board from proceeding with a vote on the proposed amendments. Citing the fact that the vote may not turn out in the Board’s favor, the Court denied the temporary restraining order and set up a briefing schedule for the preliminary injunction. Plaintiffs filed a notice of appeal, and the Appellate Division provided dates that will have the parties in front of the Appellate Division next week.

The Board proceeded with its special meeting, and the meeting was held open without taking a formal vote.

Plaintiffs are seeking a preliminary injunction to prevent the Board from amending the condominium’s declaration, by-laws, or power of attorney, or proceeding with the proposed transaction without the required consents. Plaintiffs contend that, absent injunctive relief, they will lose rights provided under the condominium’s governing documents and protected by New York Real Property Law § 339-i(2) and the New York City Zoning Resolution.

As the filing states, “Plaintiffs bring this action, individually and derivatively on behalf of the Condominium, to protect the consent rights of the Unit Owners, to hold the Board accountable to the Condominium’s governing documents, and effectively right the ship.”

The Morrison Cohen Litigation team is led by Partners Y. David Scharf, David E. Ross and Amber R. Will, Counsel Jeremy Weinstein, and Associates Jaimie L. Fitzgerald and Maria Massimo.