Board of Mgrs. of Plaza E. Condominium v Ezra Realty, LLC
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Board of Mgrs. of Plaza E. Condominium v Ezra Realty, LLC 2012 NY Slip Op 30588(U) February 29, 2012 Supreme Court, Nassau County Docket Number: 8963/11 Judge: Anthony L. Parga Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ------- -------- ---------------------------------------------------------------........ ""'''''''''' """"""'" ...... ........ .... ..... "" ...... ..... ..... ...... [* 1] SHORT FORM ORDER NEW YORK STATE- SUPREME COURT- NASSAU COUNTY HON. ANTHONY L. PARGA JUSTICE PRESENT: THE BOARD OF MANAGERS OF PLAZA EAST CONDOMINIUM and THE BOARD OF MANAGERS OF ONE BARSTOW CONDOMINIUM l't PART 6 laintiffs INDEX NO. 8963/11 MOTION DATE: 01/06/12 -against- SEQUENCE NO. 001 EZRA REAL TV , LLC and " JOHN DOE #1 " through " JOHN DOE #10" , the last ten (10) names being fictitious and unknown to the Plaintiff, the person or parties , if any, having or claiming and interest in or lien upon the premises described in the complaint Defendants. ------------ ------------------------------ X Notice of Motion , AfIs & Exs...... ""'" .................... """"'''''' .................... .......... .............. Memorandulll of Law.................................................. ... ................................................... Affidavit in Opposition & Exs''''''''''''''''''''''''''''''''''''''''''''''............................................ Reply AfTirmation & Exs............ Upon the foregoing papers , plaintiffs ' motion for summary judgment , pursuant to CPLR 3212 , and f )r the appointment of a Referee to examine and compute the sums due to plaintiffs 1321 , is granted to the extent directed below. pursuant to RP APL This action was brought by plaintiffs to foreclose common charge liens which had been fied against two (2) commercial condominium units owned by defendant Ezra Realty, LLC (hereinafter " Ezra ), due to Ezra s failure to pay its common charges. Plaintiffs alIege that the arrearage owed by detendant Ezra for the units is $19 486. 39 and $6 632. , exclusive oflate fees , attorneys ' ices , and interest , which plaintiffs contend are recoverable under the [* 2] condominium s governing documents in the event of a default. In support of its motion , plaintiffs submit the affdavit of Richard Rush , Secretary of plaintiffs since 1995. Mr. Rush sets forth the merits of plaintiff' s action and attests to the abovenoted amounts of common charges which the defendants presently owe. In addition , plaintiffs submit the By- Laws for the Condominium , which govern the operation of the condominium. The By- Laws set i~)lih the powers and duties ofthe Condominium Board , including the power to determine common charges , colIect common charges from unit owners , and enforce the obligations of unit owners. AdditionalIy, pursuant to the By- Laws , all unit owners are obligated to pay common charges assessed by the Board of Managers , which are payable monthly, in advance , on the first day of each month. The By- Laws also state that unpaid monthly common charges payable to the condominium shall be a continuing lien in favor of the condominium upon the applicable unit. Further , the By- Laws authorize the imposition of late fees , interest , and attorneys ' fees in the event of an owner s det1mlt in the payment of the common charges or Professional Unit charges. The plaintiffs also submit the Open Item Statements sent to Ezra regarding the outstanding common charges , as well as its Notices of Lien against Ezra s units. The plaintiffs have made a prima facie showing of entitlement to summary judgment , as the plaintiffs have established through admissible evidence the provisions of the By- Laws which authorize the collection of monthly common charges and obligate aii unit owners to pay same Ezra s default in payment of the monthly common charges f()r its units , and the filing ofveritied (See, e. , Board of Directors o.lHunt Club at Notices of Lien for the unpaid common charges. Coram Homeowners Ass ' , Inc. v. Hebb 72 AD. 3d 997, 900 N. Y. S.2d 145 (2d Dept. 20 I 0); RPL ~~ 339-z , 339-aa , 339-j). The proponent of a summary judgment motion "must make a prima facie showing of entitlement to judgment as a matter of law , tendering suffcient evidence to demonstrate the absence of any material issues of fact." 320 (I 986 )). (Alvarez v. Pro,)pect Hmp. 68 N. Y.2d Once the movant has demonstrated a prima facie showing of entitlement to judgment , the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form suffcient to establish the existence of material issues of a fact which require trial ofthe action. (Zuckerman v. City of New York 49 N. Y.2d a 557 (1980)). In opposition , defendant Ezra , through an affidavit duly executed by one of its members [* 3] Y ossi Shai , contends that there was a " massive fire " caused " by the negligence of the plaintiffs and its management company during the perhmllance of illegal and unlicensed roof repairs to the building. " Defendant submits no further documentary evidence concerning the fire. Defendant contends that as a result of the fire , the residential and commercial building was vacated by the Fire Marshall f~)r several months , causing Ezra s tenants to cancel their leases. As a result of the lost income , defendant contends that plaintifTbegan harassing it in order to limit Ezra s financial ability to prove plaintiffs ' liability to Ezra. Mr. Shai attests that the plaintiffs has added approximately $11 000 in attorney s fees to the common charges which it is seeking to foreclose and defendant contends that said fees were incurred in connection with " good faith negotiations to compensate Ezra for its losses arising from the fire. " He also attests that the ceiling tiles in its units were damaged because of a water leak and have not been repaired by the plaintifTs , despite Ezra s complaints. Lastly, Mr. Shai attests in his anidavit that " Ezra is mindful that it certainly has an obligation to pay common charges " and that " Ezra will consent to its obligation to be current with all common charges for the units which are the subject of this action. " He further attests that Ezra " has been paying its common charges " but fails to state that Ezra has paid same in full or that Ezra is not in default. Ezra also otTers no documentary evidence to demonstrate that it has paid its common charges to date. Defendant Ezra has failed to raise a triable issue of fact suffcient to defeat plaintiffs prima facie showing of entitlement to summary judgment. Defendant does not contest plaintiffs allegations that it owes common charges and has failed to pay same in violation of the By- Laws. A condominium unit owner " cannot withhold payment of common charges and assessments in derogation of the By- Laws of the condominium based on defective conditions in his unit or in the common areas. Matter ofAbbady. (Frisch 216 A. v. Bel/marc Mgmt. 190 AD. 2d 2d 115 629 N. 383 2d 6 (lst Dept. 1995); 200 West 109 Condominium v. Baker 244 AD. 2d 229 , 664 N. 597 N. Y.S.2d (jSt Dept. 1993); Board qlManagers of the 2d 40 (lst Dept. 1997); RPL ~~339-j, 339-x)). Once created , the administration of the condominium s aftairs is governed principally by its by- laws , which are , in essence , an agreement among all of the individual unit owners as to the manner in which the condominium wil operate , and which set forth the [* 4] respective rights and obligations of unit owners condomini urn , both with respect to their own units and the s common elements. (Schoninger A.D. 2d Yardarm Beach Homeowners Ass Inc. , 134 2d 523 (2d Dcpt. 1983)). Article 6. 1 ofthe By- Laws herein requires payment of common charges by unit owners , and the defendant has not contested that it owes overdue common charge payments or raised a triable fact sufficient to defeat plaintiffs 1 523 N. (See, Malter ojAbbady, ' motion. 216 A.D. 2d 115 629 N. S.2d 6 (Ist Dept. 1995)). As such , plaintiffs are entitled to summary judgment on the within lien f()reclosure action. Lastly, defendant Ezra s request that this Court join the instant action with the action entitled Ezra v . Board of Managers bearing Nassau County Index number 4983/11 , is denied , as the defendant has failed to submit a copy of the pleadings for said action , has failed to set forth the commonality between the two actions , and has failed to properly request said relief by filing either a motion or a cross-motion. Accordingly, plaintiffs ' motion for summary judgment is granted , and a Referee shaii be appointed to examine and compute the sums due to plaintiffs and shall submit a report regarding same to this Court. Movant is directed to submit an Order of Reference on notice within twenty (20) days. Additionally, plaintiffs ' request that the caption be amended to delete therefrom " John Doe #1 through John Doe #10 " is also granted. Movants are directed to serve a copy of this Order upon the Clerk of the Supreme Court of Nassau County within twenty (20) days. Upon receipt of this Order , the Nassau County Clerk is directed to amend the caption as directed above. This constitutes the decision and Order of this Court. Dated: February Cc: , 2012 Rosenberg Fortuna & LaHman , LLP 666 Old Country Road , Suite 810 Garden City, NY I 1530 Rothkrug, Rothkrug & Spector , LLP 55 Watcrmill Lane , Suite 200 Great Neck , NY 11021 ENTERED MAR 0 1 2012 NASSAU COUNTY COTY CLI.' , "'tiE
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