The affidavit of a cooperative board member attesting to the lack of board approval of the apartment extension, as ultimately constructed, and defendants' failure to establish that the structure was built according to plans for a "greenhouse," which seem to have received the approval of both the board and the Department of Buildings, demonstrate that defendants failed to establish their prima facie entitlement to summary judgment by "tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853). In the absence of any "specific allegation of fraud, bad faith or self-dealing" (Jones v. Surrey Coop. Apts., 263 A.D.2d 33, 35-36), the board's decision to require removal of the addition in order to comply with fire regulations and to permit access for maintenance, inspection and repair of the building facade is shielded by the business judgment rule (Matter of Levandusky v. One Fifth Ave. Apt. Corp., 75 N.Y.2d 530, 538; Konrad v. 136 E. 64th St. Corp., 254 A.D.2d 110, lv denied, lv dismissed 92 N.Y.2d 1042). However, the extensive nature of the work suggests that it could not have been performed without the acquiescence of the board and the oversight of the former management company, thereby raising an issue of fact concerning defendants' obligation to assume sole responsibility for the expense of removing the structure. Finally, plaintiff was appropriately granted a declaration that the disputed roof areas were part of its common area. The record supports the finding that defendant tenants entered into possession permissively, thus defeating their claim of adverse possession (see Joseph v. Whitcombe, 279 A.D.2d 122). Likewise, the authorization granted by the cooperative board to the predecessor unit owners to use exclusively the disputed roof areas warranted a finding that defendants acquired a revocable license to use them (see Gracie Terrace Apt. Corp. v. Goldstone, 103 A.D.2d 699, 701, appeal dismissed, 63 N.Y.2d 952;Sarfaty v. Evangelist, 142 A.D.2d 995, 996). Consequently, plaintiff cooperative corporation was justified in revoking the license during the time that the roof was undergoing repair and in requiring defendants to submit, for the board's approval, a plan for their use of the roof areas prior to restoration of the license.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.