Kupferberg v Hibbard

[*1] Kupferberg v Hibbard 2015 NY Slip Op 51251(U) Decided on August 12, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 12, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : IANNACCI, J.P., TOLBERT and CONNOLLY, JJ.
2014-1421 RO C

Harvey Kupferberg, Appellant, August 12, 2015

against

Barbara Hibbard - President Board of Managers CRYSTAL HILL CLUB CONDOMINIUM, Respondent.

Appeal from a judgment of the Justice Court of the Town of Haverstraw, Rockland County (Peter Branti, Jr., J.), entered April 10, 2014. The judgment, entered upon a decision granting defendant's oral application to dismiss the action, dismissed the action.

ORDERED that the judgment is reversed, without costs, defendant's oral application to dismiss the action is denied, and the matter is remitted to the Justice Court for trial.

Plaintiff, the owner of a unit at Crystal Hill Club Condominium, commenced this small claims action against "Barbara Hibbard - President Board of Managers Crystal Hill Club Condominium" to recover the sum of $3,000 for property damage allegedly resulting from the condominium association's failure to maintain his driveway. Prior to the scheduled trial, defense counsel made an oral application to the court to dismiss the action against defendant, as Ms. Hibbard was not an appropriate party. Plaintiff argued in response that it had not been his intention to sue Ms. Hibbard individually, and that he was willing to "withdraw" her name from the action. He simply wanted to commence an action against the condominium. The Justice Court granted defendant's oral application to dismiss the action, and a judgment was entered pursuant to the decision.

Jurisdiction in this small claims tort action was properly obtained over the condominium, an unincorporated association, by service upon the president of its board of managers (see General Associations Law § 13; Gillardi v Country Vil. Hgts. Condominium [Group I], 118 Misc 2d 947 [Sup Ct, Queens County 1983]). Moreover, even if there had been an error in designating defendant, it did not provide a basis for the dismissal of the action (cf. UJCA 1814 [b]).

Accordingly, the judgment is reversed, defendant's oral application to dismiss the action is denied, and the matter is remitted to the Justice Court for trial.

Iannacci, J.P., Tolbert and Connolly, JJ., concur.

Decision Date: August 12, 2015