IVRY SEMEL, plf-res, v. KIMBERLY KUBALI def-ap

8993. IVRY SEMEL, plf-res, v. KIMBERLY KUBALI def-ap — Kenneth J. Glassman, New York, for ap — William R. DeCoste, New York, for res — Order, Supreme Court, New York County (Milton A. Tingling, J.), entered January 30, 2012, which denied defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The parties are owners of adjacent condominium units on the top floor of a six-story building. Together with another unit owner, they obtained rights from the condominium board for each of them to build a room on the rooftop and a terrace, and jointly retained an architect. When the project was complete, plaintiff asserted that the new fence between his terrace and defendants’ terrace was encroaching by about three feet, or 50 square feet, into what had been his rooftop property, as shown on the original building plan and offering plan drawings. Defendants objected that they assumed he had reviewed and approved the architect’s plans, which had been relied on in constructing the roof additions, and any mistake was attributable to the architect. The architect asserted that the fence could not readily be moved due to, among other things, building code rules pertaining to access to fire escapes.