Board of Mgrs. of Montauk Manor Condominium v Lavenas

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Board of Mgrs. of Montauk Manor Condominium v Lavenas 2012 NY Slip Op 33086(U) December 3, 2012 Sup Ct, Suffolk County Docket Number: 34208-11 Judge: Ralph T. Gazzillo 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 FOR.\f ORnER INDEX NO.: 34208~ 11 SUPREME COURT - STATE OF NEW YORK IAS PART 6 - SUFFOLK PRESENT: HOD. COUNTY RALPH T. GAZZILLO Acting Supreme Conrt Justice MOTION DATE 5-25-12 AD.!. DATE _ Mot. Seq. # 001 ~ MotD x THE BOARD OF MANAGERS MANORCONDOMaNTUM OF MONTAUK SCHt"\:"EIDER MitoIa Up Attorneys for Plaintiff 666 Old Country Road Suite 412 Garden City, N. Y. 11530 Plaintiff, ~against- O'SHEA, MARCINCUK & BRUYN,LLP Attorneys for Defendant Suzanne Lavenas 250 North Sea Road Southampton, N. Y. 11968 SUZANNE LA VENAS individually as an Administrator and Dist.ributee of the Estat.e of Wesley First, KAREN LEE WIDTTLESEY, Distributee of the Estate of Wesley First, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., as nominee of Countrywide Home Loans, Inc. INTERi'JAL REVENUE SERVICE and "JOHN DOE #1" through "JOHN DOE #10", the last ten (10) names being fictitious and un!mown to the Plaintiff, the person or parties intended being the persons or parties, if any, having or claiming an interest in or lien UPOIi the premises described in the complaint, Defendants. ______________________ x Upon the following papers numbered 1 to 14 read on this motion for summarv judgment; Notice orMotion! Order to Show Cause and supporting papers I 14; Notice of Cross Motion and supporting papers _ Answering Affidavits and supporting papers ; Replying Affidavits and supporting papers ; Other ____ ; (add afL, hem illg eOdlls~,1 ill snppellt alid opposed h"l tlie ilH"ltion) it is, ORDERED that the plaintiffs unopposed motion for, inter alia, an order pursuant to CPLR 3212 awarding it summary judgment against the defendant Suzanne Lavenas; striking the answer of the defendan1 Suzanne Lavenas; amending the caption; fixing the defaults ofthe lloll~answering defendants; and pursuant 10 RPAPL § 1321 appointing a referee to compute the amount due and owing the plaintiff, is detcll111ned as set forth below. [* 2] Bel. of Mgrs. of Montauk Manor Condo. v I,avcnas Index No.: 11-34208 pg.2 The Hoard ofM<Jllagers of Montauk ManorCondomimum ("the plainti ff'j commenced this aCtlon to foreclose an amended notice of lien datcd September 4, 2011 for unpaid common charges, special <lsscssmcnts and other related charges and expcnses 011a condomini lltll unit situate in Su fTo11< County hy the filing ofa summons and verified complaint on Novemhcr 4,2011. By \yay of background, tbe plamtifr is the governing body of the Unit Owners (Unit Owners) of Mont;llIk Manor Condominium at Montauk of 236 Edgemere Street, Montauk, New York 1 I()54 (the Condomimum), an uninCOl11orated associatioll. The plaintiff was created pursuant to a Declaration of Condominium (the Declaration) allegedly recorded on Decemher 11, 1986 in the Office of the Su ffolk C'ountyCierk and amended thereafter on December22, 2011. In addition to the Decbration, the By-Laws (the By-l.aws) for (he Condominium werc also allegedly recorded on l)ecember 11, 19R6 and amended thereailcr. Pursuant to the Declar(ltion and the By-Laws (the Govcl11ing Documents) oflhe plainti ff, all sums assessed by the plaintiff as common charges and assessments, but unpaid, together \vith interest thereon a( the legal ratc per a1U1Ul1l plus late tees and reasonable attol11cys' fees, are chargeable to any Unit Owner in the condominium. and cause a lien 011their unit. The Governing Documents also provide, inter alia, that the plailltiffis entitled to foreclose on the lien for unpaid common charges or bring smt TO recover a money judgment for unp<Jid common charges or assesslllenls. The defendant Suzanne Lave-nas (Lavenas) is the record owner of Unit No_ 413 in the Condominium (the l:nit) as well as the V01Ullta.J)' Ad1l111l1Strntorand Distributee of the Estate of Wesley First (First) who died testate on November 29,2000. The defendants, Michael First and Karen Lee Whittlesey. are distribul'ces of the Estate of First. Lavenas and First acquired title to the Unit by deed dated Octobcr 26, 1990 (the deed) and rccorded ill the Office of the Su rrolk County Clerk on Novemher L 2009. The deed for the Unit cont.ains a recitation that title held by Lavenas and First is suhjcct to the Cioveming Documents ortlle plaintifr. The complaint ll1cludes three causes of action. Tnthe first cause of action, the pla.inti fr demands that J. judgment of foreclosure of sale he cntered with respecl to the Unit. In the second cause of action, thc plaintiff requests that a Judgment bc entered against Lavcnas in all amount to be proven al tnal or detcmlined hy the C0U11 for costs, including reasonable attorneys' fees incurred by the plamtifr 111 connection ·with this action. plus interest, but not less than 55,000.00 In the tmrd causc of action, the plaintiff demands ;'1111oncy Judgment which lllclmics arrears, 1l1tercst, costs and legal fees incurred by the pIa inti rr in an amount believed [·0 he in excess ofS38,OOO.OO In thecomplaintdated November 2, 20J I, theplaintifralleges that the defendant Suzanne L.n:cnas (Lavenas) defaulted in the payment of C01111110n charges al10tted to and due upon the Ulli1.ill the alllount of$ 15,020_23 as of.luty 26. 20 I 1. Thereafter, on September 13,2011, the plaintiiT filed a venfied notice oflicn for unpaid commOll charges in the amount of$22,5 13.55 in the Office orthe Suffolk County Clerk pursuanl to Real Property Law § 339-Z. The plaintiff further ailegcs that Lavenas has continued to f;-lil to reJ11itco11l1lloncJHlrges allotted to and due upon the Unit from and including April 1,2011, plus Interest [* 3] 8<1.ofMgrs. of Montauk Manor Condo. v Lavenas Index No.: 11-34208 pg.3 and laie fees from April, 2011 totahng 556,054.41, together with attorneys' fees pennitted pursuant to the Govellling Documents. In response to the complaint, Lavenas filed served an answer on or about November 29, 2() 12. In her answer, Lavcnas denies some afthe allegations in the complaint and admits other allegations, but does no1.asscrt any affimlative defenses. None of the other defendants have answered or appeared in this action By s1ipulation dated March 5, 2012, this action was discontillued as against the def"enc!,mt Mortgage Electronic Registration Systems, inc. (lvIERS). The plmntifrs now moves for, intcr alia. an order pursuant to CPLR 3212 awarding it summary judgment against Lavcnas; striking the answer of Lavenas; amending the caption; fixing the defaults of the non-answering dercnd311ts;and pursuant to RPAPL § ]32] appointing a referee to compute the 111ll()unl du;:: and owing the plamtiff No opposition has been filed in response 10the llloiioll_ Once created, '"the administration of a condominium's affairs is govcmed principally by its bylaws, which are, in essence, an agreement among all of the llldividllal unit owners as to the manner in whleh the condominium will operate, and \vhieh set forth the respcctive rights and obligations or unit owners, both with respect to their own units and the eondo1l1l11ium's common dements" (Glel1ridge J'vfews Condominium l' Km'i, 90 AD3d 604, 605, 933 NYS2d 730 [2d Dept 20] 1J; citing ScltOllil1ger v Yardarm Beach HomeowlIers As.'W., TIIC., 134 AD2d 1,6,523 NYS2d 523 [2d Dept 1987]). "A purchaser of a unit in a condominium enters into a binding relationship W1 tl1every other unit owner by hath contract and statutc. One of the elements of that relationship is the obligation to pay common charges ...." (Bd. of Mgrs. of Lido Beach Towers Condominium I' Gartenlnub, 27 Misc3d 12 I 3A, 9! 0 NYS2d 403, 2010 NY Slip 013 S0729U [Sup Ct, Nassau County, Apr. 8,2010, Palmieri . .L slip op, at 2]). Real Property Law § 339-e (2) defines common charges as e3ch unit's proportionatc share of the common expenses in accordance with the common interest. Common expenses are defined as (:1) expenses of operation of the property and (b) all sums designated common expenses by or pursuant 10 statute, the declaration or the by~laws (see, Real Property Law § 339-c [2}). The ob1Jgations of a unit owner to pay common charges and special asscssments cannot be avoided, and are, for the most' part, absolute and cannot he avoided {90 E. End Ave. Condominium v Becker, 201 0 NY Mise LEXIS 3036, 201 0 WL 2754086, 2010 NY Slip Op 3 J ()60U [Sup 0, New York County, June 29, 201 0, Woolcn,.T., slip op at 10]; Real Property Law § 339-x). Therefore, abscnt a valid defense, the plaintiff is cn1il1edto judgment 111ts favor 011the issue ofli<lhility as a matter of law (Rd. of i Mgn-. o.fGerden TerraCl~Com/omillium I' Chiang, 247 AD2d 237,237,668 NYS2d 364 f I ,I Dept 1998], 90 E. End AI'e. Condominium I' Becker, 2010 NY Slip Op 31660U, supra, slip op at 10)). By its submissions. the plaintiff demonstrated its entitlement to judgment as a matter of law for foreclosure and breach of contract as the answer flied by Lavenas is insufficient, as;) matter ofh:l''', 10 defeat the plaintiffs unopposed motion (see, Rd. of Mgrs. of Madiso" Met!. Bldg. Condominium l' Rama, 249 AD2d 140, 671 NYS2d 246 [iSI Dept 1998};Bd. ofil4grs. of the 200 Wrst 109 Condominium l' Baker, 244 AD2d 229, ()44 NYS2d 40 [l~lDcp1 19971; Rd. (~f-Mgrs.o.fPlaza E. Condomillium, )' Ezra [* 4] Be!' or Mgrs. of Montauk Manor COlldo. v Lavena;;; Index No.: 11-34208 pg. 4 Realty, LLC, 2011 NY Mise LEX1S 1102,2012 WL 893860, 2012 NY Slip Op 30588U [Sup Ct, Nassau County, Feh. 29,2012, Parga, J.]; Bd_ofMgrs. o.fthe Jliffage Mall at Hillcrest Condominium I' Oat/oil, 29 Misc3d 1238A, 2010 NY Mise LEXlS 6127,2010 WL 5173180 ISup Ct, Queens County, Dec. 20, 2010, Markey, .I.]; Bd. ofl'vlgrs. of the Silk Bldg. COil dominium v Levellb,·owl1, 2009 NY Misc LEXIS 5439,2009 WL 3062467, 2009 NY Slip Op 32127U [Sup Ct, New York County, Sep!". 16,2009, Edmcad, .J .J)- Jt is undisputed that Lavenas ab'fecd to be bound by the Condominium's Goveming Documents when she purchased the Unit in October 1990. It IS also undisputed that the Govcming Documents rcqUlrc, I,3venas, as a Unit Owner, to pay common charges, special assessments, late charges, lllterest [!nd the plaintiffs al1omeys' lees 2nd expenses lllculTed to co11cct such charges. Further, the plal1lti rr suhlnilted an affidavit lrom its presidcnt and a detailed account history demonstrating Lavcnas' failure to pay comnlon charges, special assessments and other related charges and cxpcnscs as required by the 8y~i~lWS. In any event, in lllstanccs where 3 defcndallt fails to oppose a Illotion for sUJ11nwryjudgmcnl, the facts, as alleged in the moving papers, maybe deemed admiued and there is, in effect, a concession thai no qucstion oHact exists (see gelleraf(v, Kuehne & Nagel, file. v B(Jidell, 36 NY2d 539, %9 NYS2d (i(} 7 1.1975]; Matli.''i01l Park 11lvs., LLC t' Atlamic Lofts Corp., 33 Misc3d 1215A, 941 NYS2d 538 [Sup Ct, Kings County, Oct. 18,2011, Cutrona, .1.]). Under thcse circumstances, the Court finds th~ll Lnvenas failed to rehut the plaintiff's prima faclc showing of its entit1cmcnt to summary judgmcnl requested by it (see, Bd. oIMgrs. of Madison Medical Building COlldomh,iulllv Rama, 249 AD2d 140,671 NYS2d 246 1~ Del'lt 1998J; Bd. of il1grs. of the 200 West 109 Condominium v Baker, 244 AD2e! 229, 644 NYS2d 40 [I <I Dept 1997]). The plainti ff~therefore, is awarded summary judgment agaill~t Lavenas strik1llg her Hnswcr (see, Bd. of Mgrs. of Pla;.a E. COli dominium, l' Ezm Realty. LLe, 2012 NY Slip Op 3()58~U, supra; St!. of Mgrs. o.f Lido Beach Towers- Condominium v Gartell/aub, 27 Misc3d 12l3A, .'illl'm; see gClJcraffv, Zuck.erman v City o.f New York, 49 NY2d 557, 427 NYS2d 595 r19kOI). r Thc branch of the 111stant motion wherein the plaintiff seeks an order pursuant to C.PLR 1024 amending the caption by substituting Richard Peli-:'onen also known as Richard Hutton [or John Doc # 1, aml by excising the fictitious named defendants, John Doe # 2- j 0, IS granteJ (see, Neighborhood Rous. Serv.'i".N. Y. City,lnc, I'Meltzel·, 67 AD3d 872, 889 NYS2d 627 [2d Dcpt 2009]). By its SUbtlllSsions, the plainti ITestahlished the hasis for this relief All future proceedings shall be captioned accordingly_ By Its moving papers, the plamti ff further established the dcfault in answering on the part oflhe newly substituted defendant, Richard Pelitoncn also known as Richard Hutton. as well as the defendants Michael First, K3ren Lee Whittlesey and Intcrnal Revcnue Service, since thcse defendants never interposed answers to the complaint (see, RPAPL § 1321; liSBC Balik lJSA, N.A. I' Roldan, 80 !\DJd 56(), 914 NYS2d 647 [2d Depl 2011J; Fimmcial Freedom Acquisition LLC v Malloy, 2012 NY Misc LEXIS 2037, 2012 WL 1576472, 2012 NY Slip 01']1 160U [Sup Ct, Suffolk County, Apr 25,2012, Pastoressa, J.]). J\ccordmgly, the def3uJts of all such defendants are fixed and dctcrnlincd. Since the plainti ffhas been awarded summary judgment agai1lst Lavcnas and has established a default ill answering by the remainmg defendants, the plaintiff is entitled to an order appointing a referee to compute amounls :lllottcd to the Uml and due from I,avenas pursuant to the Govcming Documents (see, RPAPL ~ 132 tJ; Rd. ofMgrs. (~f Plaw E. Condominium, I' Ezm Real~v, LLC, 2012 NY Slip Op 30588U, supra). [* 5] Bd. of Mgrs. of Montauk Manor Condo. v Lavenas Index No. 11-34208 pg.5 Accordingly, the motion is granted, and a referec shall be appolllted 10 examine and compute the sums dlle the plaintiff, which shall include common charges, special assessmcnts, electric charges, cable TV service charges, HVAC rep3lrs, late charges, interest and costs, except for attomeys' fees, and shall submit a report regarding the same to this Court. The plaintiff is also entitled to prejudgmcm interest on the common charges and spcCI<11ssessments from April 1,2011. Prejudgment interest shall accrue a rate of .75% per annum (i.e., 9% per w111um), as proVIded in Section 5 of1hc amended By-Laws. <It the The proposed order appointing a referee to compute, as modified hy the Court, has been signed simultaneously herewith. I . 1!:flLC::: ] J Datcd: Riverhead, 'f<'", ; NY ~ . H01~. Ralpl0. Gazzi110, A-S.C..I. , / FlNAL orSPOSITION x NON-fINAl, DISPOSITION ~ .

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