March 17, 2026

Order, Supreme Court, New York County (Richard G. Latin, J.), entered on or about July 9, 2024, which, to the extent appealed from as limited by the briefs, denied the motion of defendant Board of Managers of Colden Gardens Condominium Inc. also known as Colden Garden Condominium for summary judgment dismissing plaintiffs' fifth cause of action for breach of contract and fourth cause of action for injunctive relief, unanimously affirmed, with costs.

A violation of a condominium's declaration and bylaws is akin to a breach of contract (see Pomerance v McGrath, 124 AD3d 481, 482 [1st Dept 2015], lv dismissed 25 NY3d 1038 [2015]; Big Four LLC v Bond St. Lofts Condominium, 94 AD3d 401, 402 [1st Dept 2012], lv denied 19 NY3d 808 [2012]). The condominium's declaration provides that the units may not be used for any other purpose than that listed in the certificate of occupancy, and the declaration and by-laws provide that the units may only be used for their designated purposes in conformity with applicable codes. However, the governing documents also provide that the board has an obligation to approve or deny any request by a unit owner to structurally change their unit.

Assuming that defendants met their initial burden of establishing that plaintiffs altered their unit without proper board consent, plaintiffs have raised triable issues of fact as to whether the board approved the changes in 2009 and then improperly repudiated the approval in 2014 when plaintiffs sought to obtain a certificate of occupancy for the changed use. Plaintiffs submitted an affidavit from a managing member and authorized agent of plaintiff, who was also president of defendant Board of Managers in 2009, who stated that he presented the plans for the conversion at a 2009 board meeting, at which time the members approved the conversion of the premises to a daycare center and authorized plaintiffs to alter the unit, request the proper permits, and amend the certificate of occupancy if necessary. Moreover, his affidavit was corroborated by the condominium's managing agent, who testified at her deposition that the board approved the conversion of the premises. Notably, the actual board meeting minutes from 2009 have not been produced by defendants because they have either been lost or can no longer be located. Under these circumstances, the court correctly concluded that an issue of fact exists as to whether the board agreed to the renovations and had a duty to allow them to proceed.

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As to the fourth cause of action for injunctive relief—namely, to enjoin defendants from interfering with plaintiffs' use of the unit as a daycare facility—"it is permissible to plead a cause of action for a permanent injunction" as long as there is a substantive claim underlying it (see Weinreb v 37 Apts. Corp., 97 AD3d 54, 58-59 [1st Dept 2012]). Here, the substantive underlying breach of contract claim against the board remains. As to the adequacy of damages, even if plaintiffs prevail or are awarded damages for past illegal conduct on the part of defendants, defendants could still interfere with their use of the premises as a daycare center or preschool in the future, which would constitute a continuing breach, one for which damages may not provide an adequate remedy (see Bartley v Walentas, 78 AD2d 310, 314-315 [1st Dept 1980]).

Finally, defendants' invocation of Civil Rights Law § 76-a and the Noerr-Pennington doctrine are unavailing. Plaintiffs have demonstrated that their claim has a "substantial basis in fact and law" because there are triable issues of fact as to the breach of contract claim (Guerrero v Carva, 10 AD3d 105, 116 [1st Dept 2004]). Moreover, it is unclear whether all of plaintiffs' damages arise from the board's efforts to involve the New York City Department of Buildings to stop or reverse the conversion of the premises to a preschool or daycare center (see Villanova Estates, Inc. v Fieldston Prop. Owners Assn., Inc., 23 AD3d 160, 161 [1st Dept 2005]).

We have considered defendants' remaining arguments and find them unavailing. Concur—Manzanet-Daniels, J.P., Kapnick, Shulman, Chan, Hagler, JJ.