Pawling Lake Prop. Owners' Assn., Inc. v Dragani

Pawling Lake Prop. Owners' Assn., Inc. v Dragani 2016 NY Slip Op 02628 Decided on April 6, 2016 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 6, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RUTH C. BALKIN, J.P.
SANDRA L. SGROI
COLLEEN D. DUFFY
FRANCESCA E. CONNOLLY, JJ.
2014-04319
(Index No. 1394/13)

[*1]Pawling Lake Property Owners' Association, Inc., respondent,

v

Leo Dragani, appellant.

Leo Dragani, Port Chester, NY, appellant pro se.

William A. Shilling, Jr., P.C., Carmel, NY (Michael V. Caruso of counsel), for respondent.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the defendant appeals from a judgment of the Supreme Court, Dutchess County (Brands, J.), entered February 21, 2014, which, upon an order of the same court dated February 7, 2014, granting the plaintiff's motion for summary judgment on its cause of action to recover damages for breach of contract and dismissing the defendant's counterclaim, is in favor of the plaintiff and against him in the principal sum of $25,191.91.

ORDERED that the judgment is reversed, on the law, with costs, the plaintiff's motion for summary judgment on its cause of action to recover damages for breach of contract and dismissing the defendant's counterclaim is denied, and the order dated February 7, 2014, is modified accordingly.

The plaintiff, Pawling Lake Property Owners' Association, Inc., commenced this action to recover unpaid homeowners' assessments and fees allegedly owed by the defendant, Leo Dragani. In his answer, Dragani asserted a counterclaim challenging the plaintiff's assessment methodology. The plaintiff moved for summary judgment on its cause of action to recover damages for breach of contract and dismissing the counterclaim. The Supreme Court granted the plaintiff's motion, and a judgment was entered thereon. We reverse.

The plaintiff demonstrated its prima facie entitlement to judgment as a matter of law with respect to its cause of action to recover damages for breach of contract based on an implied contract (see Goodnow Flow Assn. Inc. v Graves, 135 AD3d 1228, 1229-1230). In opposition, however, Dragani raised a triable issue of fact (see Pawling Lake Prop. Owners Assn., Inc. v Greiner, 72 AD3d 665, 668). Moreover, the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law on that branch of its motion which was to dismiss the counterclaim. Accordingly, the Supreme Court should have denied the plaintiff's motion in its entirety.

No other issue is properly before this Court (see Fried v Jacob Holding, Inc., 110 AD3d 56).

BALKIN, J.P., SGROI, DUFFY and CONNOLLY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court