Bay Crest Assn., Inc. v Delisi

[*1] Bay Crest Assn., Inc. v Delisi 2007 NY Slip Op 51284(U) [16 Misc 3d 129(A)] Decided on June 25, 2007 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 25, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : McCABE, J.P., TANENBAUM and LIPPMAN, JJ
2006-873 S C.

Bay Crest Association, Inc., Respondent,

against

Suzanne Delisi, Appellant.

Appeal from a judgment of the District Court of Suffolk County, Third District (C. Steven Hackeling, J.), entered on February 23, 2006. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,647.65.

Judgment reversed without costs and matter remanded for a new trial before a different judge.

Plaintiff homeowners' association brought this commercial claims action against defendant, an owner of property within the private community, to recover an annual assessment for the year 2005. Until 2005, defendant paid her yearly assessment for, inter alia, use of a bathhouse. She argued that, pursuant to the bylaws of the homeowners' association, she should not have to pay the assessment for 2005 because she did not request a bathhouse for that year. Plaintiff contended that community homeowners' associations are permitted to make assessments regardless of the members' actual usage of facilities. The court below awarded judgment in favor of plaintiff on the basis of an implied-in-fact contract finding that defendant had failed to establish that she was barred from using beach facilities at the same time that she was improperly assessed a maintenance fee.

Upon a review of the record, we are of the opinion that the court below did not render substantial justice between the parties in accordance with the rules and principles of substantive law (UDCA 1804-A, 1807-A). "[A] contract implied in fact rests upon the parties' conduct and [*2]not their verbal or written words" (see Parsa v State, 64 NY2d 143, 148 [1984]). A review of the instant record indicates that the testimony regarding the conduct of the parties was too sparse to permit a finding as to the existence of an implied in fact contract or as to the effect the bylaws had upon the rights of the parties relative to the issues presented. Accordingly, the matter is remanded for a new trial as to all issues before a different judge.

McCabe, J.P., and Tanenbaum, J, concur.

Lippman, J., taking no part.