Deutsche Bank Natl. Trust Co. v Ezagui

[*1] Deutsche Bank Natl. Trust Co. v Ezagui 2009 NY Slip Op 50931(U) [23 Misc 3d 1125(A)] Decided on May 8, 2009 Supreme Court, Kings County Kramer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 8, 2009
Supreme Court, Kings County

Deutsche Bank National Trust Company, As Trustee of Ameriquest Mortgage Securities, Inc., Asset Backed Pass Through Certificates, Series 2005-R2, Under the Pooling and Servicing Agreement Dated as of March 5, 2005, Without Recourse, Plaintiff,

against

Eliyahu Ezagui, Board of Managers of Kingston Gardens Condominium, Tova Eilenberg c/o Jaroslawicz & Jaros, Esq., David Myhill; Sandi Myhill, Defendants.



22604/07



Plaintiff was represented by Fein, Such & Crane, LLP, 28 Main Street, Rochester, NY 14614. Defendant Ezagui was represented by Michael J. Peterson, Esq., 231 67th St., Brooklyn, NY 11220. Defendant Tova Eilenberg was represented by Jaroslawicz & Jaros, LLC, 225 Broadway, NY, NY 10007. Defendant Board of Managers was represented by the Law Offices of Gerald P. Gross, 366 Pearsall Ave., Cedarhurst, NY 11516.

Herbert Kramer, J.

This case has had by now a considerable history. It involves a large condominium in the Crown Heights section of Brooklyn in which the developer allegedly transferred the deeds to a number of apartments to family members who encumbered them with mortgages after the units were " sold" to various individuals. Some of the mortgages on the apartments are in default and the banks are now in the process of foreclosing.

The plaintiff bank has moved for a judgment of foreclosure and sale and the Board of Managers of Kingston Gardens Condominium submits opposition. In the foreclosure of another apartment in this building [Deutsche Bank v. Ezagui, et al, Ind. No. 22604/07], the Board of Managers cross moved to dismiss the action and by decision dated, November 6, 2008, this Court determined that the Board of Managers has no standing in the proceeding. The self same determination holds here with regard to the opposition submitted by the Board of Managers for the reasons discussed below. [*2]

"The condominium form of ownership of real property may be described as a division of a parcel of real property into individual units and common elements in which an owner holds title in fee to his individual unit as well as retaining an undivided interest in the common elements of the parcel . In New York the creation and administration of condominiums is governed by the provisions of Real Property Law article 9-B (§ 339-d et. seq.). A parcel of real property becomes a condominium and thus is subject to the jurisdiction of the Condominium Act (Real Property Law §339-f) by the filing of a declaration (Real Property Law § 339-n). Once created, however, the administration of the condominium's affairs is governed principally by its bylaws, which are, in essence, an agreement among all of the individual unit owners as to the manner in which the condominium will operate, and which set forth the respective rights and obligations of unit owners, both with respect to their own units and the condominium's common elements . . . .Under the Condominium Act, there are a number of mandatory items which the bylaws of a condominium must contain, including provisions for the nomination and election of a board of managers to serve as the principal agents of the condominium and a statement of the powers and duties of that board (Real Property Law §339-v [1] [a]). Since the bylaws are the vehicle by which unit owners forego certain individual property rights and delegate them to a board of managers, it is important that the bylaws clearly spell out the limits of the board's authority to act". Schoninger v. Yardarm Beach Homeowner's Ass'n, Inc., 134 AD2d 1(2d Dept. 1987).

Here, the Board of Managers, which would purport to speak for the owners of the equity of redemption with regard to the units in the process of foreclosure have not shown this Court the basis for their claimed authority either in the statutes or in the by laws. Real Property Law § 339-dd provides that: "Actions may be brought or proceedings instituted by the board of managers in its discretion, on behalf of two or more of the unit owners, as their respective interests may appear, with respect to any cause of action relating to the common elements or more than one unit. Service of process on the unit owners in any action relating to the common elements or more than one unit may be made on the person designated in the declaration to receive service of process." " This section empowers a board of managers of a condominium to maintain an action on behalf of the condominium owners with respect to common areas or more than one unit." Board of Managers v. Fairways 150 AD2d 32 (2d Dept. 1989).

Here, the plaintiff-banks did name the Board of Managers as defendants in the foreclosure action, but that was simply to cut off any maintenance or common charges that may have accrued. Although more than one unit is in foreclosure, each foreclosure is a unique action against a specific unit for a discrete sum that is premised upon the amount that was initially borrowed and the interest and other charges that accrued. Each unit will be sold as a distinct parcel at auction and not as part of a group of units. Consequently each foreclosure action does not involve more than one unit. Compare Residential Bd. of Managers of Zeckendorf Towers v. Union Square-14th Street Associates, 190 AD2d 636 (1 Dept.,1993).( affirming the dismissal of the Board of Manager's causes of action for negligence and breach of contract against a defendant who contracted solely with the owner where the Board of Managers was only an incidental, not intended beneficiary of the defendant's contract with the owner). All of this notwithstanding, even were this Court to deem the Board to have standing in this matter, it does not find the arguments raised by the Board to have presented a meritorious [*3]defense to this action.

Accordingly, the plaintiff's motion for a judgment of foreclosure and sale is hereby granted .

This constitutes the decision and order of the Court.

J.S.C.