Board of Directors of the Maidstone Landing Homeowners Assn., Inc. v Maidstone Landing, LLC
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Board of Directors of the Maidstone Landing Homeowners Assn., Inc. v Maidstone Landing, LLC 2012 NY Slip Op 32391(U) September 12, 2012 Supreme Court, New York County Docket Number: 600438/2007 Judge: Martin Shulman 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] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: \ PART index Number : 600438/2007 MAIDSTONE LANDING HOMEOWNERS INDEX NO. vs MOTION DATE MAIDSTONE LANDING LLC. bbnqx fc MOTION SEQ. NO. Sequence Number : 007 b 7 REARGUMENTIRECONSIDERATION The following papers, numbered 1 to Notlce of Mtoon J/ An8WOdng Amdavita - Exhlblta , were read on thia motlon W o r flW'% 1 rr\ P II 5 -Amdavlta - Exhlblts A -E- IN 0 W . L IN d 4 . 2 , 1 IN d d . L - 1a Replylng Affldavlta Upon the fomgolng papers, It is ordered that thir motion I &2-&& s h &c & ~ NEW YORK COUNn CLERK'S OFFICE ,J.S.C. ..................................................................... CASE DISPOSED 2. CHECK AS APPROPRIATE: ........................... MOTION IS: 0GRANTED I. CHECK ONE: 3. CHECK IF APPROPRIATE: ................................................ SElTLE ORDE DO NOT POST NED 0GRANTED IN PART 0OTHER 0SUBMIT ORDER FlDUCfARY APPOINTMENT 0REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 1 X ---------__1__-111_ _------------------------------------------- ------ THE BOARD OF DIRECTORS OF THE MAIDSTONE LANDING HOMEOWNERS ASSOCIATION, INC., suing on behalf of its members, THE BOARD OF MANAGERS OF THE MAIDSTONE LANDING CONDOMINIUM I, suing on behalf of its unit owners, and THE BOARD OF MANAGERS OF MAIDSTONE IANDING CONDOMINIUM II, suing on behalf of its unit owners, Index No.: 600438/07 DECISION AND ORDER Plaintiffs, -againstMAIDSTONE LANDING, LLC, WILBER FRIED, DAVID FRIED, JUDITH FRIED, EXETER BUILDING CORP., DOUGLAS R. SHARP and BLOODGOOD, SHARP, BUSTER ARCHITECTS AND PLANNERS, INC., Defendant Wilbur Fried (s/h/a Wilber Fried) ( Fried ) moves to reargue this court s decision and order dated April 9, 201 1 (the decision ) solely to the extent that it denied his motion for summary judgment dismissing the ninth cause of action against him. Plaintiffs oppose the motion for reargument. The relevant factual allegations are set forth in detail in the decision and as such will not be repeated. Reargument A motion for reargument, addressed to the discretion of the court, is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law [and] ... is not to serve ___ ~~~ The defined terms in the decision are used herein. [* 3] as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided [or] ... to provide a party an opportunity to advance arguments different from those tendered on the original application (Foley v Roche, 68 AD2d 558, 567-568 [I st Dept 19791; see also, McGill v Goldman, 261 AD2d 593, 594 [2d Dept 19991). At the outset, plaintiffs claim that the motion to reargue is untimely is rejected. Plaintiffs argue this motion is untimely because it was not brought within 30 days of service of notice of entry as required by CPLR 2221(d)(3). In support of this claim, plaintiffs submit notice of entry of the decision served by the BSB co-defendants on April 25, 2012 (Schwartz Aff. in Opp. at Exh. I). However, the affidavit of service thereof does not indicate that it was served on Fried s counsel. As such, the 30 day time period never began to run as to Fried and this motion is timely. The ninth cause of action alleges Fried and co-defendants Judith and David Fried breached their fiduciary duty to plaintiffs as members of both the HOA s board of directors (the board ) and the board of managers of Condominiums I and II ( managers ). This court s decision granted summary judgment dismissing this cause of action as to Judith and David Fried as time barred. However, as to Fried, this court . found that from the arguments presented, it appears that [Fried] retained his seat on the board until May 17, 2004, which is less than three years prior to this lawsuit s commencement. As such, this court found that [qluestions of fact exist as to whether [Fried], as a member of the board, knew of the alleged defects and failed to remedy them in order to benefit himself as the owner of Maidstone and Exeter. -2- [* 4] Fried alleges this court overlooked the fact that he relinquished his position as a board member on or before October 16, 2003, more than three years prior to this lawsuit s commencement2 and accordingly, the ninth cause of action should have been dismissed as untimely against him. More specifically, Fried contends his position on the board terminated by operation of the terms of the offering plans3for Condominiums I and II. As this court noted in its decision, the offering plans provide that Maidstone, as the condominium sponsor, was to retain control of the HOA s board until 95% of the units were conveyed, as well as control of the board of managers of Condominium I and II until 95% of the units in each phase was sold. Fried contends that title to 95% of the units had closed as of October 16, 2003 thus he is deemed to have resigned from the board as of that date. In opposition, plaintiffs contend reargument should be denied because Fried alleges new facts and arguments not advanced in the prior motion with respect to when his board term ended. Plaintiffs also dispute the veracity of Fried s claim that he vacated his board seat on or before October 16, 2003 and maintain that he continued to serve on the board through May 17, 2004,4less than three years from this action s February 9,2007 commencement. Plaintiffs commenced this action by filing a summons with notice on February 0, 2007. See Motion at Exh. A, sub-exhibit D. May 17, 2004 is the date Maidstone s last unit was sold. As the condominium s sponsor, Maidstone had the right to designate one board member so long as it owned one unit. -3- [* 5] Fried s motion to reargue is denied. This court did not overlook or misapprehend the facts herein. Rather, as plaintiffs aptly note, Fried bases his present motion to reargue on a new argument not previously advanced in support of his motion for summary judgment dismissing the ninth cause of action. Fried never submitted an affidavit either in support of his motion for summary judgment or in opposition to plaintiffs motion for summary judgment positively averring that he resigned from the board on or before October 16, 2003 by operation of the offering plans terms. In fact, it is difficult to discern from the underlying record when Fried claims his board term ended? Having failed to raise this argument in the prior round of motion practice, Fried cannot raise it for the first time on reargument. Finally, in arguing that plaintiffs failed to submit any proof that he remained on the board until May 2004, Fried improperly attempts to shift the burden of proof to plaintiffs. However, as set forth above, Fried failed to sustain his burden of proof on his statute of limitations defense and as such the burden never shifted to plaintiffs. Even if the burden of proof had shifted to plaintiffs, Fried failed to submit an affidavit expressly refuting plaintiffs affidavit in opposition from Mark A. Manti, the president of the HOA board of directors, stating that Fried continued to serve on the board through The memorandum of law in support of the Maidstone defendants motion for summary judgment concedes that Fried continued to serve on the HOA board after September 12, 2002, the date co-defendants Judith and David Fried relinquished their seats on the HOA board, but fails to state when his term ended. See Schwartz Aff. in Opp. at Exh. 6, p.28, fn I. Additionally, contrary to Fried s characterization, the Sixth Amendment to the Offering Plan filed with the Attorney General s Office on October 16, 2003 does not indicate that Fried was no longer on the board as of that date; rather, it expressly identifies Fried as a current member of the HOA board of directors. Id. at Exh. 10. -4- [* 6] September 2004. As Fried failed to establish entitlement to summary judgment in his favor, no basis for reargument exists. Accordingly, it is hereby ORDERED that defendant Wilbur Fried's motion to reargue is denied. The foregoing constitutes this court's Decision and Order. Courtesy copies of this Decision and Order have been provided to counsel for the moving defendant and plaintiffs. Dated: New York, New York September 12, 2012 HON. MARTIN SHULMAN, J.S.C. NEW YORK COUNTY CL ¬RK'S OFFICE -5-
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