When Security and Privacy Concerns Clash in Multi-Family Buildings12/01/2013 | Winter 2013 Newsletter
Boards of Directors and Boards of Managers of cooperative and condominium buildings are often faced with a dilemma – how to protect the security and property of building residents and still protect their legitimate right to personal privacy? These issues arise when boards consider the installation of security cameras or keyless entry systems, when they require occupants to provide copies of keys to all exterior apartment doors and when they obtain applications or maintain other personal information regarding building occupants. A brief summary of New York’s privacy laws and how they apply to these issues is provided below.
The Right to Privacy in New York
New York does not recognize common law causes of action alleging invasions of privacy. Instead, the right to privacy is exclusively governed by statute. Civil Rights Law § 50 makes the use of a person’s name, portrait or other picture for advertising or trade purposes without prior written consent a misdemeanor. Civil Rights Law § 51 provides a private right of action for damages resulting from § 50 violations. To establish liability in a private action alleging an invasion of privacy under New York’s Civil Rights Law, a plaintiff must show: (1) the use of the name, portrait or other picture, or voice of a living person, (2) for advertising or trade purposes, (3) in the state of New York, and (4) without the prior written consent of the person depicted. These laws usually do not impact cooperative or condominium buildings, as they do not seek to profit from the names, images or voices of their building occupants. Boards should obtain releases from residents or staff whose images may be used in promotional materials for their buildings.
Article 250 of New York’s Penal Law imposes criminal penalties for “offenses against the right to privacy.” The sections under this article prohibit invasions of privacy through conduct such as eavesdropping, wiretapping, tampering with private communications, and unlawful surveillance. Specifically, unlawful surveillance involves the illegitimate filming of a person in a place where that person has a reasonably expectation of privacy. N.Y. Penal Law § 250.45.
There is no question that a person has a reasonable expectation of privacy in his own home.See People v. Mercado, 68 N.Y.2d 874, 876 (1986). However, multifamily buildings, including cooperatives and condominiums, are unique in that residents share certain common areas with each other (i.e. lobby, stairwells and hallways). In a multifamily building setting, persons do not have a reasonable expectation of privacy in such common areas. People v. Funches, 89 N.Y.2d 1005, 1007 (1997).
Installation of Surveillance Cameras
A board considering the installation of surveillance cameras needs to determine whether such installation invades the residents’ right to privacy, and whether the camera’s specific location has any bearing on the issue. For example, may a board install surveillance cameras in a building’s common areas? What if the camera is positioned so that it may capture images from inside a resident’s unit?
Cooperative and condominium boards are permitted to install surveillance cameras in the building’s common areas. Branscombe Investments, Ltd. v. Bd. of Mgrs. of the Olympic Tower Condominium, 2008 WL 400661 (Sup. Ct. N.Y. Co.). Residents in multifamily buildings lack a reasonable expectation of privacy in the building’s common areas, which includes hallways.Otero v. Houston Street Owners Corp., 2012 WL 692037 (Sup. Ct. N.Y. Co.). A board’s decision to install surveillance cameras is governed by the business judgment rule, which says that the court will not second-guess the judgment of the board if the board acted in good faith and in furtherance of the interests of the shareholders or unit owners.
The fact that a surveillance camera captures images from inside a resident’s unit does not necessarily amount to an invasion of the resident’s privacy. In Otero, the court held that installation of a camera which viewed into the plaintiffs’ apartment only when the plaintiffs opened their door did not constitute an invasion of privacy.
Using Keyless Entry Systems
Some buildings have considered using keyless entry systems, rather than traditional metal locks, for front and rear entry doors or for amenity areas in buildings. These systems, which use electronic FOBs or keycards, can maintain a computerized record of the dates and times a resident enters or exists the premises, or certain areas therein (i.e. garage, gym or laundry room). Does the collection and maintenance of such information amount to an invasion of residents’ privacy?
New York’s courts allow use of such systems. In Frederick v. University Towers Assoc., 2002 WL 31914670 (Sup. Ct. Kings Co. 2002), the plaintiff sought to prevent his residential building from converting to a keyless entry system, alleging the new system was an invasion of privacy. The Supreme Court held there is no common law right to privacy, that plaintiff’s only available remedy would be under sections 50 and 51 of New York’s Civil Rights Law and that use of such system is not an invasion of privacy under these sections. The court dismissed the complaint.
Similarly, in Stuyvesant Town-Peter Cooper Village Tenants’ Ass’n v. Metropolitan Life Ins. and Annuity Co., Inc., 4 Misc.3d 1030(A) (Sup. Ct. N.Y. Co. 2004), the Supreme Court dismissed the plaintiff-resident’s complaint which alleged that the owner’s decision to convert to a keyless entry system invaded his privacy.
The Right to Access Resident Apartments
Boards often require access to a resident’s apartment – there might be an emergency requiring immediate attention, such as a gas or water leak; there may be a building system repair that can only be accomplished by accessing the system through a particular unit. Residents having alterations or renovations performed must have the work inspected by the board’s engineer or architect to confirm that the work has been properly completed and in accordance with approved plans. All of these situations require a board to balance an occupant’s right to security with the cooperative’s or condominium’s need to have its building and systems safely maintained for the protection of all residents.
Contractual Rights of Access
Rights of access are generally found in a cooperative’s proprietary lease, a condominium’s by-laws, in house rules and regulations and in alteration agreements. These contractual rights are in addition to a resident’s obligation to provide keys to his or her landlord to permit access in case of emergency.
In the absence of such an agreement, entry upon the property of another without permission, even if innocently or mistakenly done, constitutes a trespass. Curwin v. Verizon Communications (LEC), 35 A.D.3d 645 (N.Y. App. Div. 2nd Dept. 2006). In Hill v. Raziano, 63 A.D.3d 682 (N.Y. App. Div. 2nd Dept. 2009), cooperative shareholders sued a cooperative’s contractor for trespass, alleging that it entered upon and remained in their apartment without permission, invitation or legal right. The defendant moved to dismiss the complaint arguing, among other things, that he entered plaintiffs’ apartment as an agent of the cooperative, and therefore, his entry was authorized under the proprietary lease. The Appellate Court examined the proprietary lease, which authorized agents of the cooperative to enter an apartment at any time and without notice under certain enumerated circumstances and referred the matter for a determination whether the defendant was an authorized agent permitted entry by the lease terms.
The New York City Administrative Code and the rules adopted thereunder permit a landlord to access a tenant’s apartment to deal with emergency situations and to make repairs. The relevant section is NYC Adm. Code § 27-2008, which states “No tenant shall refuse to permit the owner, or his or her agent or employee, to enter such tenant’s dwelling unit or other space under his or her control to make repairs or improvements required by this code or other law or to inspect such apartment or other space to determine compliance with this code or any other provision of law, if the right of entry is exercised at a reasonable time and in a reasonable manner.”
Title 28 of the Rules of the City of New York at Chapter 25, at § 25-101, Owner's Right of Access, provides that owners shall notify the tenants in writing of the need to access to the apartment, not less than twenty-four hours in advance of such time. Where an owner, contractor or agent of the owner seeks access to make improvements required by law or to make repairs, notice shall be given to the tenant not less than one week in advance of the time when the improvements or repairs are to be started. However, where repairs are urgently needed in emergencies to prevent damage to property or to prevent injury to persons, such as repairs of leaking gas pipes or appliances, leaking water pipes, stopped-up or defective drains or leaking roofs, broken and dangerous ceiling conditions, no advance notice shall be required from the owner, agent, contractor or workman.
The Rules also state that when an authorized agent or employee of an owner seeks access to an apartment, the authorization of the owner shall be in writing and the agent or employee shall exhibit such authorization to the tenant when access is requested. Except in emergencies, access to an apartment is limited to the hours between 9 AM and 5 PM. Access is not to be required on Saturdays, Sundays or legal holidays except in emergencies.
Resident Must Provide Duplicate Key
Section 51-C of New York’s Multiple Dwelling Law gives residents the right to install new locks on the main entrance door to their units. However, Section 51-C also requires residents to provide the landlord with a duplicate key upon request. This also recognizes that boards have a right of access in emergency situations.
The failure to provide duplicate keys, upon request, may be grounds for termination of a resident’s lease. In 111 Tenants Corp. v. Stromberg, 168 Misc.2d 1014 (Civ. Ct. N.Y. Co. 1996), a cooperative housing corporation brought a holdover proceeding against a tenant-shareholder after it had terminated the shareholder’s lease because she changed her locks and refused to surrender a duplicate key. The tenant-shareholder argued that her refusal to surrender a duplicate key arose from her concerns for safety and privacy. The court upheld the board’s decision to terminate her lease based upon the business judgment rule. The court also held the willful failure to surrender a duplicate key, as required by the clear terms of the proprietary lease and Section 51-C of New York’s Multiple Dwelling Law, constituted a breach of a substantial obligation of her tenancy, entitling the cooperative to terminate her proprietary lease and be awarded a judgment of possession.
Similarly, in 415 East 52nd Street Assoc. v. Romaine, 121 Misc.2d 50 (Civ. Ct. N.Y. Co. 1983), the court upheld a cooperative’s right to bring a holdover proceeding against a rent-stabilized tenant, due to the tenant’s failure to surrender a duplicate key as required by the lease and Multiple Dwelling Law Section 51-C.
Maintenance of Resident Information
The final privacy issue involves the steps that a board should follow to protect and maintain personal information about existing or prospective owners. For example, a prospective purchaser of a unit in a cooperative or condominium is required to submit, as part of the approval process, a lengthy application that often contains detailed personal and financial information about the applicant. Typically, the board destroys applications after it renders a decision; however, it may maintain a copy for the applicant’s file. What obligation does a board have to protect the resident’s personal information? Does a resident have a cause of action against a board for improperly releasing his personal information?
Section 399-dd of New York’s General Business Law requires corporations and associations, among others, to protect the confidentiality of a person’s social security number. General Business Law section 399-h requires that certain measures, including deleting personal information or shredding documents that contain such information, must be taken by corporations or associations when disposing of personal information. These sections apply to cooperatives because they are corporations and also apply to condominiums because they are associations of unit owners. Therefore, boards must take “reasonable measures” to protect residents’ social security numbers, and properly destroy or dispose of residents’ personal information. Otherwise, the board may be subject to statutory liability.
General Business Law section 399-dd, at the last sentence of subsection (7) says, “[no corporation or association] shall be deemed to have violated the provisions of this section if such [corporation or association] shows, by a preponderance of the evidence, that the violation was not intentional and resulted from a bona fide error made notwithstanding the maintenance of procedures reasonably adopted to avoid such error.”
The lesson for boards is to adopt procedures reasonably designed to protect the personal information of their shareholders and unit owners.
About the author: David L. Berkey is managing partner of Gallet Dreyer & Berkey LLP, where he practices real estate law and litigation, concentrating on issues affecting cooperative corporations and condominium associations. Mr. Berkey is counsel to numerous cooperative and condominium boards, companies and individuals. He is a regular speaker at bar association seminars on matters involving co-op and condo law, and he is a faculty member at Cardozo Law School’s trial advocacy program. Mr. Berkey has been named by Super Lawyers magazine as one of the top attorneys in real estate law in the New York metropolitan area. Mr. Berkey can be reached at email@example.com.