Board of Mgrs. of Gateway Condominium v Leonard

Annotate this Case

Download PDF

Board of Mgrs. of Gateway Condominium v Leonard 2012 NY Slip Op 31113(U) April 24, 2012 Supreme Court, New York County Docket Number: 105268/11 Judge: Joan A. Madden 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] SCANNED ON412712012 1 > - SUPREME COURT OF THE STATE OF FEW YORK NEW YORK COUNTY I I HON. JOAN A. MADDEN J.S.C. PRESENT: - Index - PART [/ Just/co Number : 105268/2011 ED. MGRS. GATEWAY CONDOMINIUM vs. LEONARD, LAVERNE M. SEQUENCE NUMBER : 001 PARTIAL SUMMARY JUDGMENT The following papem, numbered 1 to Notlae of MotlonlOrderto Show Cause Answsrlng Aftldavits - Exhfblb INDEX NO. MOTION DATE MOTION SEQ, NO. , ware rbad on this motion to/for -Affldavib -Exhibite P VJ ? 0 I - NEW YORK COUNTY CLERKS OFFIC S.C. 1. CHEeK ONE: 2, CJFEKAS NON. ..................................................................... APP~~PME: 3- CHECK IFAPPROPRLATE: 0CASE DISPOSED 0DENIED ................................. GRAMED ISI0 ................................................ 0o O S E ~ORDER LE 0DO NOT POST uFIDUCIARY A [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 11 Plaintiff, -against- LAVERNE M. LEONARD and MARC0 DEVEGLAIA, and "JOHN DOEIJANE DOE," first and/or last name of John Doe and/or Jane Doe Respondents being fictitious and unknown to Petitioner, the persons intended being in possession of the premises herein described, JOAN A. MADDEN, J.: NEW YOIqK c - p , CLERKS OFFICE ~ ~ Plaintiff The Board of Managers of Gateway Condominium (the oar of Manager?) moves (motion sequence no. 00 1) for an order pursuant to CPLR 32 12 granting partial summary judgment on its causes of action for breach of contract (2nd cause of action), an account stated (5'h cause of action) and attorney's fees (IOth cause of action), against defendant Laverne M. Leonard, seeking unpaid common charges in the total amount of $16,450.27 and an award of attorney's fees. Defendant Leonard opposes the motion. The Gateway Condominium is a condominium apartment building located at 2098 Sth Avenue in Manhattan, operated by plaintiff Board of Managers. Defendant Leonard is the owner of Units 3F and 3G, and defendant Deveglaia is the subtenant occupying Unit 3F. Plaintiff commenced the instant action on May 19,201 1. The amended complaint asserts eleven causes of action: 1) breach of the condominium act and seeks a money judgment for common charges, late fees and fines totaling $157,159.62; 2) 1 [* 3] breach of contract - common charges and seeks a money judgment for $1 1,199.62 in common charges, $30,000 in additional common charges, and $3,200 in late fees for a total of $44,399.62, through March 3 1,201 1; 3) breach o f contract - infractions and seeks a money judgment for accumulated fines totaling $56,380.00 on Unit 3F, and fines totaling $56,380.00 on Unit 3G, for a total of $1 12,760.00 ;4) unjust enrichment and seeks a money judgment in the amount of $1 1,199.62; 5) account stated and seeks a money judgment for $14,399.62 in common changes and late fees, and $1 12,760.00 in fines, for a total of $157,159.62, as of March 3 1, 201 1; 6) preliminary and permanent injunctions (61h,7Ih, gth and 9 hcauses of action; 7) attorney s fees (1 Oth cause of action); and 8) foreclosure of plaintiffs lien for unpaid common charges (1 cause of action). Defendant Leonard answered asserting 20 affirmative defenses and one counterclaim for tortious interference and slander. Defendant Deveglaia did not timely answer. Plaintiff is now moving for partial summary judgment against defendant Leonard on its second cause of action for breach of contract and its fifth cause of action for an account stated, and seeks unpaid common charges and interest for the two units in the total amount $16,450.27 ($8,033.45 for Unit 3F and $8,416.32 for Unit 3G, for August 2009 - September 201 1). Plaintiff also seeks summary judgment on its 1Oth cause of action for attorney s fees. As the proponent of a motion for summary judgment, plaintiff bears the initial burden to make a prima facie showing of entitlement to judgment as a matter of law by tendcring sufficient evidentiary proof to eliminate any material issues of fact from the case. Winenad v. New In a separate motion (sequence no. OOZ), plaintiff is seeking default judgment against defendant Deveglaia, who has appeared pro se in opposition to the motion and seeks leave to serve a late answer. 2 [* 4] York U piversity Medical Center, 64 NY2d 85 1, 853 (1 985). Failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposition papers. 2! % d p. C Q ~ .Cowregs Finmcial Corn., 4 NY3d 373, 384 (2005); Alvarez v, v. Prospect Hospital, 68 NY2d 320, 324 (1986). As CPLR 3212(b) provides thpt a summary judgment motion shall be supported by affidavit of a person having knowledge of the facts, as well as other admissible evidence, a conclusory affidavit or an affidavit by an individual without personal knowledge of the facts does not establish thc proponent s prima facie burden. bColeman v, MaclaS, 61 AD3d 569 (Int Dept 2009); JMD Holdirg Gorp . v. C o n , ~ r m FinmGial C o p . , suma at 384-385; 127 Restaurant Corn, v. RQS Realty Group, LLC, 19 AD3d e 172 (1 Dept 2005). In support of its motion for summary judgment, plaintiff submits an affidavit of Arthur Langer, the Board President of Gateway Condominium. Specifically as to the breach of contract and account stated claims for Leonard s unpaid common charges, Mr. Langer states as follows: 10. According to the account ledger associated with the Units [Units 3F and 3G], which reflects the Common Charges billed by the Condominium to Leonard, and the corresponding payment, Leonard failed to consistently make payments for Common Charges as it [sic] became due each month. * * * 12. As of today s date [September 6,201 I], the amount of Common Charges and interest due from Leonard which gave rise to this cause of action are as follows: Unit 3F Common Charges and Interest $8,033.45 from August 2009 - September 201 1: Unit 3Cr Common Charges and Interest from August 2009 September 201 1: - TOTAL 3 $8,416.32 $16,450.27 [* 5] Although Mr. Langer references the "account ledger" for Units 3F and 3G, plaintiffs motion papers do not include copies of those supporting documents. In opposing the motion, defendant Leonard objects, inter alia, that plaintiff has not submitted its account ledger or any other documents to support its assertion as to the amount due and owing for common charges and interest. Defendant also objects that plaintiff provides no explanation for the amounts sought in the motion, which are considerably less that the amounts sought in the amended complaint. Defendant further asserts that summary judgment is premature since no discovery has been conducted. In its reply papers, plaintiff submits copies of the account ledgers for the two units owned by defendant Leonard. Plaintiffs motion is denied. Plaintiff fails to submit sufficient evidence in admissible form demonstrating as a matter of law the common charges for the two units which have not been paid by defendant Lconard. In the absence of plaintiffs account ledgers for Units 3F and 3G, Mr. Langer's conclusory affidavit is insufficient to satisfy plaintiffs initial burden. While plaintiff submits the account ledgers with its reply papers, plaintiff is not entitled to use those documents to remedy the basic deficiencies in its prima facie showing. .. Meiia-OI-tiz v. Inoa, 89 AD3d 514 (1'' Dept 201 1); Those Certain Underwriterg At 1,lovds. London v. Gray, 49 AD3d 1 (Ist Dept 2007); S msarole v. Madisan Square Gardep. L.P,, 33 AD3d 5 17 (1" Dept 2006); c Miedol v. City of New York, 291 AD2d 201 (1" Dept 2002). Moreover, to the extent plaintiff is moving for summary judgment on its Sh cause of action for an account stated, plaintiff submits no evidentiary proof to support such claim. Mr. Langer's affidavit does not state that invoices were rendered to defendant Leonard, and that she retained those invoices without objection within a reasonable time, which are necessary elements 4 [* 6] of an account stated claim. & RUSSO Melley, 80 AD3d 53 1 ( l S tDept 201 1); WI Professional v, Alternatives. Inc. v. Clitigroup Global Markets Lnq, 61 AD3d 61 8 (1 Dept 2009); Rockefella Groun Inc v. Edwards & Hiofih , 164 AD2d 830 (1 I Dept 1990). Even though the amended - complaint alleges that invoices and statements of account were sent to defendant Leonard for unpaid common charges, late fees and fines, plaintiff does not submit copies of any invoices or other correspondence addressed to defendant Leonard, as to any amounts due and owing. Finally, the court notes that plaintiff provides no explanation as to why it is now seeking damages in the total amount of only $16,450.27 on both the 2 dand 51h causes of action, which is significantly less than the amounts sought in the amended complaint on each of those claims, i.e. $44,399.62 on the 2 dcause of action and $1 57,159.62 on the Sh cause of action. Accordingly, it is hereby ORDERED that plaintiff s motion for partial summary judgment is denied; and it is further ORDERED that the parties are directed to appear for a preliminary conference on May 24,2012, at 9:30 a.m., in Part 11, Room 351, 60 Centre Street.. FILED DATED: A p r i l 2 J ,2012 ENTER: APR 26 2012 EW YORK [ J.S.C. 5

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.