Fawn Lake Forest Assn., Inc. v Vicari

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[*1] Fawn Lake Forest Assn., Inc. v Vicari 2012 NY Slip Op 51667(U) Decided on August 29, 2012 District Court Of Suffolk County, Third District Hackeling, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 29, 2012
District Court of Suffolk County, Third District

Fawn Lake Forest Association, Inc., Plaintiff


Vincent Vicari, Frances Vicari, Defendant

HUC 494-12

The Law Offices of Jared P. Turman, PLLC

Jared P. Turman, Esq.

Attorney for the Plaintiff

1980 Broadcast Plaza

Merrick, New York 11566

Vincent Vicari

Frances Vicari

Defendants Pro-se

C. Stephen Hackeling, J.

Pursuant to complaint dated January 23, 2012, Fawn Lake Forest Association, Inc. (hereafter "Fawn Lake") seeks to recover $7,977.37 of maintenance fees dating back to 2006 and $2,393.21 of attorneys fees from the defendants, Vincent and Frances Vicari (hereafter "the Vicaris"). The Vicaris interposed an answer dated February 14, 2012 asserting seven affirmative defenses. The Court conducted a trial of the issues joined for disposition on June 28, 2012 and July 26, 2012.

The undisputed relevant facts addressed at trial are that the Vicaris are New York residents who purchased an undeveloped real property lot No.38 in the Ledgeview Division, Section VIII in Pike County, Pennsylvania on July 13, 1983 from Oak Homes, Inc. (Exhibit 1). Fawn Lake is a Pennsylvania corporation homeowners association which assesses maintenance dues upon the Vicaris subdivision which originally were less than $100.00 per year and which in March 2012 had risen to $1,220.00 per year. (Exhibit 3).

The Vicaris contend that their lot is undevelopable and worthless as neither the developer or Fawn Lake extended infrastructure (road) and utilities (water and electric) improvements to their lot. For this reason they have not paid Fawn Lake assessment which they contend only benefits the lots which have infrastructure improvements. The Vicaris question why Fawn Lake [*2]affirmatively sues them in New York to recover same rather than assessing same as a lien against the property and assert that they are viewed by the plaintiff as an involuntary cash cow which can be readily milked in lieu of foreclosing upon a worthless undeveloped lot.



Fawn Lake acknowledges no contractual privity with the Vicaris but contends that the reference in the Vicaris deed to "subject to all conditions, documents, restrictions and reservations" set forth in the property's chain of title, authorizes it to maintain this action. As the subject premises deed and covenants involve Pennsylvania real property, New York Conflict of Laws doctrine compels this Court to apply the law of the land situs, Pennsylvania. See Restatement of Law and Conflict of Laws (Second) Sec. 190(a)(c) and Sec. 223 (2012). See generally Strumpf v. Hallahan,101 AD 383 (NY A.D. 1st Dept. 1905).

It is Fawn Lake's assertion that Exhibit 2 represents the recorded Restrictive Covenants and that Title 68, Chapter 5314-15 of the Pennsylvania Real and Personal Property Law authorizes this action. (See Exhibit 4). The relevent portions of these statues provide:

Sec. 5314. Assessments for common expenses.

(a) General rule. —Until the assocaition makes a common expense assessment, the declarant shall pay all the expenses of the planned community. After any assessment has been made by the association, assessments shall be made at least annually, based on a budget adopted at least annually by the assocaition. The budgets of the assocaition shall segregate limited common expenses from general common expenses if and to the extent appropriate.

(b)Allocation and interest. —Except for assessments under subsection (c), all common expenses shall be assessed against all the units in accordance with the common expense liability allocated to each unit in the case of general common expenses and in accordance with subsection (c) in the case of special allocation of expenses. Any past due assessment or installment thereof shall bear interest at the rate estbalished by the associatin at not more than 15% per year.

(c)Special allocations of expenses.— Except as provided by the declaration:

(1) Any common expense assocaited with the maintenance, repair or replacement of a limited common element shall be assessed in equal shares against the units to which that limited common element was assigned at the time the expense was incurred.

(2) Any common expense benefiting fewer than all of the units shall be assessed exclusively againt the units benefited.

Sec. 5315. Lien for assessments.

(a) General rule.— The assocaition has a lien on a unit for any assessment levied against that unit or fines imposed against its unit owner from the time the assessment or fine becomes due. The assocaition's lien may be foreclosed in a like manner as a mortgage on real estate. A [*3]judicial or other sale of the unit in execution of a common element lien or any other lien shall not affect the lien of a mortgage on the unit, except the mortgage for which the sale is being held, if the mortgage is prior to all other liens upon the same


property except those liens identified in 42 Pa. C.S. Sec. 8152(a)

(relating to judicial sale as affecting lien of mortgage) and liens for planned community assessments created under this section. Unless the declaration otherwise provides, fees, charges, late charges, fines and interest charged under Section 5302(a)(10), (11) and (12) (relating to power of unit owners' assocaition) and reasonable costs and expenses of the assocaition, including legal fees, incuured in connection with collection of any sums due to the assocation by the unit owner or enforcement of the provisions of the declaration, by laws, rules or regulations against the unit owner are enforceable as assessments under the section. If and assessment is payable in installments and one or more installments are not paid when due, the entire outstanding balance of the assessment becomes effetive as a lien from the due date of the delinquent installment.

A review of these statues and the purported restrictive covenents, reveals no affirmative cause of action authorizing the entry of a money judgment against the Vicaris. On the contrary; paragraph V. 6. expressly limits Fawn Lake's remedy for failure to pay to impressment of a lien when it provides:

In the event any Maintenance fee, Special Assessment, Water Charge, Water Rate or other fee, charge or assessment established or provided for by this Article shall remain unpaid 30 days after the same shall be due, the amount of each and every such unpaid fee, assessment and charge together with interest at 7% per year from the due date plus a late charge of $2.00 plus all reasonable collection costs including attorney fees shall be a lien upon the lot or lots as to which the same are unpaid with priority over all the unrecorded liens and charges until the same, with late charge, interest and collection costs are paid in full, notwithstanding which the same shall also continue to be the personal obligation of the Owners of such lot or lots as of the due date.

Similarly, Sec. 5315(a) of the aforecited Pennsylvania statute limits assessment collection remedies to impressment of a real property lien. Absent contractual privity or reference to some other statutory or common law theory; Fawn Lake maintains no recognizable cause of action which would authorize entry of a money judgment in either Pennsylvania or New York State.

Accordingly, the defendants have establishes their :third affirmative defense" and the plaintiff's complaint is dismissed.

Dated: 8-29-12Hon. C. Stephen Hackeling