This action arises from a dispute about a penthouse apartment and terrace space. Plaintiff, J. Armand Musey, moves under CPLR 5015 (a) (3) to vacate the 2015 order of then-Supreme Court Justice Paul Wooten ^[FN1] and to amend his complaint to add several new causes of action against defendant, 425 East 86 Apartments Corp., a cooperative corporation. The motion is denied.

I. Branch of the Motion to Vacate

In July 2015, the court dismissed plaintiff's claim for a declaration that certain house/terrace rules the coop board allegedly adopted in 2013 (rules 4 and 5) violate plaintiff's [*2]proprietary lease and are therefore void.^[FN2] (See Musey v 425 E. 86 Apts. Corp., 2015 WL 4365395, *3-5 [Sup Ct, NY County 2015 [Wooten, J.], affd 154 AD3d 401 [1st Dept 2017].) The court held that plaintiff could not assert this challenge to the coop board's decision as a plenary action and would be able to do so only in a CPLR article 78 proceeding. (Id. at *4.) He also held, that in any event, the limitations period to commence an article 78 proceeding had lapsed. (Id.) On appeal, the First Department found that he "properly dismissed, as time-barred, so much of the [claim] that sought a declaratory judgment that the house rules enacted by the co-op, concerning use of the roof/terrace adjoining plaintiff's penthouse unit, were contrary to the terms of the proprietary lease." (Musey, 154 AD3d at 403.)

Plaintiff now contends that defendant obtained the 2015 order through fraudulently misrepresenting that the coop adopted the house/terrace rules in 2013. Plaintiff claims that he recently discovered that the coop board never adopted the rules and that the board intentionally hid this fact from him. (NYSCEF No. 356 at 1.) Plaintiff says he learned about the alleged fraud from March and May 2024 depositions. The transcripts show that there are no board minutes or resolutions reflecting the board's adoption of the house/terrace rules. (See NYSCEF Nos. 368, 370 [deposition transcripts].) Defendant argues that plaintiff unjustifiably delayed in bringing this motion and that he has not provided sufficient evidence of fraud.

Assuming that the rules were never adopted in 2013, plaintiff does not explain how he could have possibly brought an article 78 proceeding challenging the validity of those rules. A claim that those rules violated the propriety lease would not stand if those rules do not exist. And plaintiff does not otherwise contend that the board took actions to implement the substance of those rules in response to which he could have filed an article 78 proceeding. Nor does he say that another board determination could have served as the basis for an article 78 proceeding when he commenced this action in 2014.

Additionally, plaintiff does not explain why he did not bring this motion until March 2025—a year after the March 2024 deposition. Moreover, although plaintiff provides evidence that would support his contention that the board planned to adopt the house/terrace rules at a later time. (NYSCEF No. 367 at 64) and that there are no minutes/resolutions of the board adopting the rules, that evidence is not sufficient to show the presence of fraud.

Accordingly, the branch of the motion to vacate the 2015 decision—to the extent it pertains to the status of rules 4 and 5—is denied.

II. Branch of the Motion to Amend Complaint

Plaintiff seeks leave to amend the complaint to add new causes of action. On the first proposed causes of action, plaintiff seeks a declaratory judgment that the terrace is part of plaintiff's apartment. (NYSCEF No. 373 at 15 [pdf pagination] [proposed amended complaint].) On the second proposed caused of action, plaintiff alleges that defendant breached the lease by denying that the terrace is part of plaintiff's apartment. (Id. at 16.) On the third proposed cause of action, plaintiff seeks a declaratory judgment that the new house/terrace rules are null and void. (Id. at 18.) Finally, on the fourth proposed cause of action, plaintiff alleges that defendant committed fraud when defendant misrepresented that "(i) the RT Standards were properly adopted; and (ii) that Plaintiff was to comply with a non-existent roof membrane warranty." (NYSCEF No. 356 at 12.)

1. This court concludes that plaintiff's proposed causes of action that defendant breached the lease by denying that the terrace is part of the apartment and that he is entitled to a [*3]declaratory judgment that his terrace is part of the apartment are devoid of merit. The lease provides that an apartment is "the rooms in the building as partitioned on the date of the execution of this lease designated by the . . . apartment number. (NYSCEF No. 358 at 2 [pdf pagination] [lease].) The lease, presumably for concision purposes, uses the term "the apartment" to include the apartment itself, plus "appurtenances and fixtures and any closets, terraces, balconies, roof, or portion thereof out-side of said partitioned rooms[,] which are allocated exclusively to the occupant of the apartment." (Id.) By this definition alone, it is clear, that although the terrace is allocated for plaintiff's exclusive use—which is undisputed—it is not intrinsically part of the apartment.^[FN3]

2. Plaintiff seeks a declaratory judgment that the house/terrace rules—which he claims were never adopted—are null and void. Assuming that they were adopted, however, these rules have already been superseded by the 2014, 2015, and 2018 versions of the rules. Plaintiff may not timely challenge those rules under article 78. (See 389 at ¶ 11 [plaintiff conceding he may not challenge 2014 or 2015 rules].)

3. Plaintiff seeks to raise claims for fraud in misrepresenting to him that the house/terrace rules were adopted and in misrepresenting that the roof had a warranty. Defendant argues that these claims would be time-barred. Plaintiff argues that he discovered the alleged fraud only in 2024 and therefore that he had two years to bring this claim.

A fraud claim is subject to a six-year statute of limitations. (CPLR 213 [8].) Alternatively, a plaintiff may assert its claim "within two years of the time when plaintiff[ ] could with reasonable diligence have discovered the alleged misconduct." (Harbinger Capital Partners II, LP v Apollo Global Mgt., LLC, 236 AD3d 514, 515 [1st Dept 2025].) Defendant has shown that plaintiff was on notice that there was no warranty already back in 2018. (See NYSCEF No. 398 [email from plaintiff]). Additionally, although plaintiff contends that he learned that no minutes and resolutions exist showing that the house/terrace rules were adopted only in 2024, the record reflects that he knew this as early as 2019. (See NYSCEF No. 389 at ¶ 9 [plaintiff's 2019 affidavit].) Nor does plaintiff otherwise explain how, with reasonable diligence, he would not have discovered this alleged fraud before 2024, especially given plaintiff's previous efforts to enforce his rights to inspect the coop's books and records through article 78 proceedings in 2016 and 2021. (NYSCEF No. 401 at ¶¶ 5-6.)

The branch of plaintiff's motion to amend his complaint is denied.

Accordingly, it is

ORDERED that the branch of plaintiff's motion to vacate the 2015 order is denied; and it is further

ORDERED that the branch of plaintiff's motion to amend his complaint is denied.