Board of Mgs. of Renaissance E. Condominium v Benyaminov
Annotate this Case
Download PDF
Board of Mgs. of Renaissance E. Condominium v Benyaminov 2017 NY Slip Op 30360(U) February 23, 2017 Supreme Court, New York County Docket Number: 150708/2013 Judge: Jennifer G. Schecter Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 02/27/2017 10:38 AM 1] '1 HE S'l'A'l'E Of' NEW YORK 5tJPREJVJE COOR! OE NYSCEF DOC. NO. 108 INDEX NO. 150708/2013 RECEIVED NYSCEF: 02/27/2017 COUNTY OF NEW YORK: PART 57 ------------- ---------------------------x THE BOARD OF MANAGERS OF RENAISSANCE EAST CONDOMINIUM, suing on behalf of the unit owners, Plaintiff, Index No. 150708/2013 DECISION AND ORDER -againstDANIEL BENYAMINOV and LUCY BENYAMINOV, Defendants, ----------------------------------------x JENNIFER G. SCHECTER, J.: Pursuant to CPLR 3212, plaintiff The Board of Managers of Renaissance East Condominium (Renaissance East) moves for summary judgment dismissal of the counterclaims asserted by defendants Daniel Benyaminov and Lucy Benyaminov, which seek recovery for breach of contract, breach of fiduciary duty and unjust enrichment as well as an accounting. The motion is granted and the counterclaims are dismissed. Background On December 15, 2003, defendants, who have always sublet the apartment, Street [Opp] in at <JI purchased Unit Manhattan 9) . SE (Building) (Unit) (Affirmation Shortly thereafter, lot adjacent to the Building. at 319 East 105th in Opposition construction began on a In May 2004, as a result of the neighboring excavation and construction, the Unit was damaged (Opp at <JI 14, Ex G). Other units on the Building's E line sustained damage as well. , ' Mr. Benyaminov reported the damage to Max Management--the Building's managing agent at the time. 2 of 9 Max Management told [*FILED: NEW YORK COUNTY CLERK 02/27/2017 10:38 AM 2] ~---.:--~---iBjca~on"'f't-itJqrrg~rFs~ro0t,........,R~e nno:;a~i~s~s~a~n~c~e:--~~~~~~~~~~~-=-~I 0 NYSCEF DOC. NO. 108 East Condo. v Benyaminov Mr. INDEX NO. 150708/2013 Index No. 150708/13 RECEIVED NYSCEF: 02/27/2017 Page 2 Benyaminov that it was in contact "with the Building's insurance company regarding damage to the building, including [the] Unit" Years (Benyaminov Aff at later, in May 12). ~ 2010, Renaissance records calculated. showing how the informed Mr. Benyaminov asked defendants that they were in arrears. for East outstanding amount had been He also stated: "Several years ago Renaissance Condominium received a sum of money for damage to our apartment from the building next door. We have at several meetings asked for the settlement records and have received nothing. We fixed our apartment ourselves. The outside was never taken care of" (Opp, Ex C [emphasis added]). In response, Management Corp., the Building's which had managing replaced Max agent, H.S.C. Management, provided a list of unpaid charges associated with the Unit. It further explained: "The Board of Managers . advised . . that you never submitted any claims for damages to your unit. If there was damage to your unit which you believe is a condo responsibility, please submit documentation to the board for review" (id. [emphasis added]). It is undisputed that defendants never submitted any documentation in response to the 2010 letter. In 2013, Renaissance East commenced this action against defendants based on their failure to pay monthly common charges, special assessments and late fees, which had amounted to over $47,000 (Affirmation in Support [Supp], Ex A at~~ 73 of 9 [*FILED: NEW YORK COUNTY CLERK 02/27/2017 10:38 AM 3] Ed of Mgrs of Renaissance NYSCEF DOC. NO. 108 RECEIVED NYSCEF: 02/27/2017 Index No. 150708/13 Page 3 East Condo. v Benyaminov 8) · INDEX NO. 150708/2013 Defendants answered and asserted four counterclaims all of which relate to the damage that the Unit sustained almost a decade earlier. The counterclaims, in short, are based on Renaissance East's receipt of compensation for damage to the Building in connection with the neighboring construction and its failure to disclose the details of the amount received and how it was allotted as well as the failure to give defendants any part of those funds. Alexander Bossy, that Renaissance President of Renaissance East, East "received no proceeds swears from the settlement of any insurance claim arising out of water damage to defendants' unit and other units in the building" (Opp, Ex A at 1 6). At his deposition, Bossy testified that the board hired someone and paid $80,000 to repair damages caused by the neighboring construction (Supp, Ex C at 55-56). under oath, that He explained, the board obtained reimbursement for the money outlaid for repairs from KAO Associates (id. at 56). Analysis Summary Judgment is a drastic remedy that should not be granted if there is any doubt as to the existence of material triable issues(see Glick & Dolleck v T!i-Pac Export Corp, 22 NY2d 439, 441 [1968] [denial of summary judgment appropriate where an issue is "arguable"]; Sosa v 46th Street Develop. LLC, 101 AD3d 490, 493 [1st Dept 2012]). 4 of 9 The burden is on the [*FILED: NEW YORK COUNTY CLERK 02/27/2017 10:38 AM 4] NYSCEF DOC. NO. 108 Bd of Mgrs of Renaissance RECEIVED NYSCEF: 02/27/2017 Index No. 150708/13 Page 4 East Condo. v Benyaminov movant to judgment make as admissible a a facie of then showing law form demonstrating material facts. burden prima matter. INDEX NO. 150708/2013 by the of entitlement presenting absence of shifts to the opponent to in any disputed Once the movant has made this showing, competent evidence, establish, the through that there is a material issue of fact that warrants a trial (Alvarez v Prospect Hosp., 324 evidence to 68 NY2d 320, [1986]). Breach of Contract Defendants' first counterclaim seeks recovery for breach of contract. under an Defendants obligation to allege that Renaissance East remit to [them] any and all "is sums received from any insurance claims relating to defendants' unit [and despite the representations of the plaintiff] that the insurance proceeds would be apportioned among the units that were damaged and for which claims were submitted and paid by the insurance carrier, no sums have been remitted to defendants" (Supp, Ex B at i i 20-21). Plaintiff established that there were no insurance claims or insurance proceeds related to damage to the Unit or other units caused by the neighboring construction. defendants shift gears from what was In response, asserted in their counterclaim and assert that the breach of contract is based on breach of the bylaws in that 5 of 9 Bossy "wilfully misled" [*FILED: NEW YORK COUNTY CLERK 02/27/2017 10:38 AM 5] INDEX NO. 150708/2013 j NYSCEF DOC. NO. 108 Ed of Mgrs of Renaissance East Condo. RECEIVED NYSCEF: 02/27/2017 Index No. 150708/13 Page 5 v Benyaminov defendants and concealed pertinent information about money due and owing to them (Opp at <JI 53). The breach-of-contract claim is also predicated on the board's alleged failure detailed records, at <JI 54) showing, to keep meeting minutes and books of account (id. Discovery is over and, in response to plaintiff's there is no evidence whatsoever that any money was improperly agreement, withheld from defendants including the bylaws. in breach of any Nor is there any authority entitling defendants to collect damages from plaintiff for the breaches of the bylaws that they The assert. first counterclaim is thus dismissed. Accounting Defendants plead, in their '2013 that counterclaim, plaintiff has never accounted to them "the amount or location of the settlement funds obtained as part of their settlement with the neighboring building for damages caused to the 'E- line' of apartments" and demand an accounting (Supp, Ex B at <J[<J[ 25-26). Renaissance East, however, has searched for any responsive documents, which date back many years, and swears that it has none (Reply, Ex B at <Jl<Jl 4-6). Th~re is no evidence, moreover, nor even an allegation that any documents were destroyed in response to the counterclaims, which were asserted for the first time almost a decade after the alleged damage (cf. Opp at <JI 44 [explaining that 2010 was "years after 6 of 9 [*FILED: NEW YORK COUNTY CLERK 02/27/2017 10:38 AM 6] NYSCEF DOC. NO. 108 Bd of Mgrs of Renaissance INDEX NO. 150708/2013 RECEIVED NYSCEF: 02/27/2017 Index No. 150708/13 Page 6 East Condo. v Benyaminov plaintiff received its settlement"]). Summary judgment is therefore granted in favor of plaintiff on defendants' cause of action for an accounting. Breach of Fiduciary Duty and Unjust Enrichment In their third counterclaim, defendants allege that Renaissance East breached its fiduciary duty by "failing to remit amounts due demanded to do so" responsibilities (Supp, Ex B at defendants in and good after having been duly by recovery East's "failing faith 30-31) ':!!':!! seek Renaissance and owing with In for receipt fulfill regard their unjust of to to fourth Defendants" counterclaim, enrichment "settlement their funds based from on the neighboring building, and failing to remit the amount due and owing to defendants" (id. at ':!! 34) In repaired response to damages Renaissance and was East's reimbursed for showing those that it repairs, defendants have supplied no evidence to the contrary to raise any triable issue.* counterclaim was In fact, in May 2010--years before the interposed--Renaissance East asked for documentation related to defendants' damages after defendants represented that they had fixed their apartment themselves so ·For example, there is no evidence from any other damaged E-line unit owner that it received compensation from plaintiff despite failing to provide documentation of damages. 7 of 9 [*FILED: NEW YORK COUNTY CLERK 02/27/2017 10:38 AM 7] NYSCEF DOC. NO. Mgrs of Renaissance Bd of 108 East Condo. RECEIVED NYSCEF: 02/27/2017 Index No. 150708/13 Page 7 v Benyaminov that it could conduct a review. If defendants wanted sustained or to have INDEX NO. 150708/2013 Defendants never responded. compensation for the damages they repairs made at plaintiff's cost, of course, defendants should have submitted proof to Renaissance East in response to its 2010 inquiry regardless of defendants' lack of knowledge of any "settlement" or the former managing agent's statement years earlier that contact with the Building's insurance company had been made (see Opp at~ 44). Renaissance East, consistent with its fiduciary duty, asked for proof of defendants' alleged damages in 2010 and no proof was supplied. To date, there is no proof of costs related to the repairs that the Benyaminovs actually made to the Unit (Opp, Ex C ["We fixed our apartment ourselves"]) and an estimate of what repairs would cost, which was prepared by Mr. Benyaminov, was only provided after this action was commenced. On this record, there is no question of fact as to whether Renaissance East breached its fiduciary duty or was unjustly enriched at defendants' expense. money was evidence paid that to other it was), unit holders Even assuming that (and there nothing entitled defendants is zero to any reimbursement or other compensation from funds that plaintiff received. 8 of 9 [*FILED: NEW YORK COUNTY CLERK 02/27/2017 10:38 AM 8] $ • .I INDEX NO. 150708/2013 Index No. 150708/13. RECEIVED NYSCEF: 02/27/2017 Page 8 Bd of Mgrs of Renaissance NYSCEF DOC. NO. 108 East Condo. v Benyaminov Conclusion Defendants urge that summary judgment must be denied because "we still do not know what the settlement amount was, when the compensation from which occurred, settlement the settlement, or received units any other relevant details" and there are "questions of fact regarding (a) the actual to the (c) the impact of the neighboring construction, (d) damage Building, to defendants' Unit, (b) the damage plaintiff's intentional misrepresentations and other bad-faith conduct, (e) plaintiff's settlement . . (f) the existence of and any records concerning its settlement (g) how the proceeds received by the board were actually distributed or used" (Benyaminov Aff at Because the and answers 18, lack to 37) evidence East's Renaissance misrepresentation because ~~ of all bad of of lack of faith unrefuted and the is other questions defendants raise are immaterial--for example, that regardless of whether the Unit was actually damaged in 2004, there has been no showing that defendants can recover on their counterclaims-plaintiff entitled is to judgment that plaintiff's on defendants' counterclaims. Accordingly it is ORDERED motion for summary judgment dismissal of defendants' counterclaims is granted and the Clerk is directed to enter judgment dismissing decision and order of the court. Dated: February 23, 2017 G. SCHECTER 9 of 9
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.
