Board of Mgr. of the Villas on the Bay at E. Moriches Condominium v Merkle

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Board of Mgr. of the Villas on the Bay at E. Moriches Condominium v Merkle 2013 NY Slip Op 32806(U) October 21, 2013 Sup Ct, Suffolk County Docket Number: 20087-12 Judge: Arthur G. Pitts 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. [* 1] SHORT FORM ORDER INDEX NO.: 20087-12 SUPREME COURT - STATE OF NEW YORK IAS PART 43 - SUFFOLK COUNTY PRESENT: HON. ARTHUR G. PITTS Justice of the Supreme Court MOTION DATE: BOARD OF MANAGERS OF THE VILLAS ON THE BAY AT EAST MORICHES CONDOMINIUM, 10-25-12 ADJ.DATE:~~~~ MOT. SEQ.# 001 XM #002 MG MD Plaintiff, -againstROBERT ARTHUR MERKLE and "JOHN DOE #1" through "JOHN DOE #IO", the last ten (10) names being fictitious and unknown to the Plaintiff, the person or parties intended being the person or parties, if any, having or claiming an interest in or lien upon the premises described in the complaint, SCHNEIDER MITOLA LLP Attorneys for Plaintiff 666 Old Country Road Suite 412 Garden City, N. Y. 11530 LIEB AT LAW Attorneys for Defendant Merkle 376A Main Street Center Moriches, N. Y. 11934 Defendants. Upon the followi ng papers numbered 1 to..1.Q_ read on this motion for summary judgment. an order of reference and other related relief ; Notice of Motion/ Order to Show Cause and supporting papers I - 18 ; Notice of Cross Motion and supporting papers 19-25 ; Replying Affidavits and supporting papers 26-30 ; Other 0 ; (and afte1 hem ins eotmsel in snppor t and opposed to the motion) it is, ORDERED that this motion by the plaintiff for an Order; (1) directing the entry of summary judgment in favor of the plaintiff pursuant to CPLR 3212; (2) for the appointment of a referee to compute and report the amount due to plaintiff pursuant to RP APL§ 1321 or in the alternative CPLR431 land CPLR4317; ( 3) striking "John Doe #1 "through "John Doe #10", and (4) together with such other and further relief which the Court may deem just, necessary and proper is granted; and it is further ORDERED that the plaintiff shall serve a copy of this Order with Notice of Entry within ninety (90 ) days of the date the Order is signed by the Court upon counsel for the defendant, Robert Arthur Merkle, pursuant to CPLR 2103 (b), (1), (2) or (3) and thereafter file the affidavit of service with the Clerk of th Court; and it is further ORDERED that a copy of this Order with Notice of Entry shall also be served upon the Calendar Clerk ofthis IAS Part 4 3, and the Clerk of the Court by first class mail with a certificate of mailing who are hereby directed to mark the Court's records to reflect excising the defendants "John Doe #1" through "John Doe# 1O" as set forth in the Order of Reference and incorporated herein by reference. That all future submissions to the court under this Index number shall reflect the amended caption and it is further [* 2] Bd Managers of Villas Co11domi11ium v Merkel Index No.: 20087 Page2 ORDERED tint the cross-motion by the defendant Robert Arthur Merkle is denied in its ent irety. The present action involves the f()reclosure of a condominium lien based upon the defendant Robert Arthur Mcrk lc's ( herc inaltcr ·'\;ferkle ,. ) failure to pay arrying charges on the condom inium , located at 59 Watchogue /\venue. Unit 34, East Morichcs, ew York 11 940 ( hereinafter "Unit") .. Issue was join d by the service of an answer by counsel for Merkel on or about .July 23. 2012 consisting or general denials and cJ 'Ven · ffirrnative defenses. Defendant Merkel opposes the motion and cross-moves to dismiss th' foreclos ure action and for attorneys' fees . A lthou gh Merkl' has denominated his unlabeled motion as a cross motion to dismiss. the motion must be deemed one for .·um mary judgment under C PI ,R 3212 since Merkle · s answered and iss ue has thus been joined (see Nowacki v Becker, 71 AD 3d 1496, 897 YS 2d 560 f 4 111 Dept 20 I 0 I; /(avo11kil111 v Kaletta, 294 /\D 2<l 646, 742 YS 2d 157 I 3rd Dept 20021; Tu/ail v Honas, l 56 /\D 2d 6 70. 549 YS 2d I 2"'1 Dept 1989 I). The plaintiff commenced this action to foreclose a notice of lien l~1 r unpai d common charges. late Ices and other related ch· rge: on a residential condominium unit owned by Merkle. Merkl' acquired tile to the l lnit by deed dated April 2 , 2004 a cl recorded in the office of the Suffolk County C lerk o n May 12, 2004. The deed to the Unit conta ins ::i recitation that title held by Merkle is subject to a Declaration of the plaintiff. Article 9-B ol' the Real Propcrt, Law, known as the Condominium Act, permits the cstabl i ·hment or a lien for un1 aid common charges in fa vor o f the Board of Managers of a condominium complex ( sec RPL § 399- v: 339-z ) and it permits the Board of Ma nager s to commence a foreclosure action to collect the monies owed to it as common charges. The laintiffhas complied with RPL §s 339-z· 339-aa by Ii ling a verified lien with the County Clerk and the lien has been perlcctcd. s Plaintiff now moves for summary j udgment (see CPLR 3212 l_ ; My1111g Cl11111 v North Am. Mtg. a] r l ' 1 Dept 200 I 1) to dismiss the answe r by Merkle and the asserted aflirmativc defenses and fo r the issuance of an order ofrer'rencc. It is we ll establ ished that the proponent ol"a summary judgment moti on ··1 ust make a prima faeic showing of entitlement to judgment as a matter of la w. tendering sufficient v idcncc to demonstrated t e absence of any material issue or fact ·· (Alvarez v Prospect Ho. ¢;p. 68 Y 2d 320, 508 Y, 2d 923 [ 1986 I). Co., 285 /\D2<l 42. 729 NYS. 2d 716 In support ol" the mot ion plaintiff has submitted the affidavit testi1 ony of" Patrieia Whaley ( hercinaltcr ·' Whaley'"), the President of the Board of Managers of the Villas at East Bay Morie hes Condominium (hcreinaltcr ·'Villas"), a copy of the Condominium Declaration and Ry-Laws, supporting documentation or Mcrkel's ownership by deed the con ominium ; the failure or Merkle to pay the common charges ,, hen they became v due. the filin g of the nntic' of lien. and a detailed account showing the su1 s <lue (see e.K Board of Mgrs. of the Vil. Mall at Hillcrest Comlominium, v Dallon . 29 Misc . 3d 1238 [Al 20 10 .Y. LEXIS 6127 . 20 I 0 . Y. Slip Op 5219 U I Sup Ct Qu 'ens County 2010 J). or Once created," the administration or a condominium's affairs is governed principally by its by-laws, which arc. in essence. an agreement among all the individual unit mvncr · as to the manner in which the condominium wi ll operate an which sets forth the respective right and ob ligation unit owners both with or or [* 3] Bd Mauagers of Villas Condominium v Merkel lnde.c No.: 20087 Page 3 respect to their own un its and the condomini m · s common clements" ( Glen ridge 1l1ews Co11domi11ium v Ka vi, 90 J\D .., d 604, 605, 933 NYS 2d 730 r 2 11 ct Dept 2011 l internal citations omitted) . J\ purchaser of a unit in a condominium enters into a binding relationship with every other unit owner by both contract and stat te. 0 c ol'the elements of the relationship is the obligation to pay common charges (Bd <if Lido Beach Towers Co11domi11ium v Grarte11lauh, 27 Misc. 3d 1213/\, 91 ONYS 2<l 403 I Sup Ct assa u County 20 I 0 I). RP L § 339-c 121 icfincs common charges as each mit 's proportionate share of the common expenses in accordance with the common interest. Common expenses arc defined as IaJ expenses or operation of the prop rty, and fb l all sums designated common cxpen. cs by or pursuant to statute, the declaration or the by-laws (see RPL § 339-e I 21 supra). <~{Managers The obligation of a condominium unit owner to pay charges is for the most part absolute, and cannot be avoided (see 90 E. End Ave. Co11domi11ium v Becker, 2010 WL 27540861 Sup Ct New York County 2010]; see also RPL § 339-x ). Conseq uently, absent a valid defense, the plaintiff is entitled judgment in its favor on the issue ofliability · s a matter oflaw (see Bd <if Mgrs. of Garden Terrace Condominium v Chiang, 247 AD 2<l 237 668 .S. 2d 36411 51 Dept 19981; 90 E. End Ave. Condominium v Becker, 20 10 WL 2754086 , supra). The plaintiff has dem onstrated its entitlement to judgment as a matter of law awarding it the amounts that it assessed against Merkel for common charges. costs and disbursements and attorneys fees ( see Bd. <if Directors <if Squire Green at Paling llomeowners As.rn. Inc. v Bell 89 J\D 3d 657. 933 NYS 2d 288 I 2"0 Dept 21001 · Bd. <if Directors of Hunt Club at Coram Homeowners Assn. Inc. v Heb., 72 J\D 3d 997. 900 YS 2d 145 I 2 11 <.1 Dept 2010 I; Bd. <if Mgrs. <if the Village Mall at llillcrest Co11domi11ium v Dadn, 29 Misc. 3d 123 8A, 20 I 0 WL 5173180 I Sup Ct Q 1eens County 20 1Ol Bd. of lido Beach Towers Condomin ium v Grarte11/a11h, 27 Misc. 3d 1213/\, supra); Bd. of Mgrs. of the Silk Bl<lg. Condominium v leve11brow11, 2009 WI 3062467 I Sup Ct cw York County 2009j). Plaintiff has submitted admissible evidence o f' its authority to collect those assessmen ts pursuant 10 the rel vant sections of the Gov ming Documents. Th' p la intiff has also demonstrated the validity of the lien ( . ·ee RPL § 339-aa ). Merkle agreed to be bound by the Condom iniums ' Governing documents when he purchased the unit in April 2004. The Governing documents require that Merkle, as a Unit owner, pay common charges, late charges, interest and attorneys Ices and expen. cs incurred to collect such charges. Merkle docs ot contest the affidavit testimony by Whaley the President of the condominium board. wherein she sets rorth a detailed account history demonstrating Merkle's failure to pay the common charges, · nd other related charges and expenses as required by the go erning documents. Since plainti ff has presented documentary evidence of its entitlement to summary judgment as a matter or law, it now beco1 ~s incum ent upon Merkle to come forward and la bare his proof and demonstrate. by admissible evidence, and evid 'ntiary facts showing the existence of a triable issue with regards to bona fide defenses to the action such as waiver, estoppel bad faith, fraud , oppressive and/or unconscionable conduct on the part of the plaintiff (see Capstone Bus. Credit, LLC v lmperia Family Realty, LLC, 70 AD 3d 882, 895 YS 2d 199 l 2'"1 20I0 j; Marine Midfllml Bank, N.A. v Freedom Rd. Realty Assoc., 203 AD2d 538, 61 1 YS2d 3412 11ct Dept 1994J· Marto11Assoc.vVitale, 172A02d501,56 8 YS2d 11912"0 Det199Il:A11drevPome1J1, 35 NY2d 362 YS2d 131 l 1974 I), or the existence of a material issue of fact requiring a trial ( see Grogg v So11tlr Road Assoc.,L.P., 74 J\D 3d I 021 907 NYS 2d 22 [ 2° 0 Dept 2010 ]; Washington Mut. Bank v O'Co1111er, 63 J\D 3d 832, 880 YS 2d 696 [ 2 110 Dept 2009J : Aames Funding Corp. v Houston, 44 J\D 3d 692, 843 YS 2d 660 I 2 11 d Dept 2007 j; Iv app den 10 NY3cl 704, 857 YS 2d 37 l 2008 I; rearg11ment den. [* 4] Bd Managers of Villas Condomi11i11m v Merkel lnde.c No.: 20087 Page 4 l 0 NY 3d 9 l G, 862 N S 2d 222 l 2008J; Charter One Bank v Houston, 300 AD 2d 429, 751 NYS 2d 573 I 2"u Dept 2002 I: Iv app dismissed 99 NY 2d 65 l, 760 NYS 2d 104 r2003 I). Merkle 's general denials and denial of information sufficient to form a belief, arc insufficient, as a matter of law, and summar_ judgment will be grant d when the Answer proffer nothing more than general denials .. (Fairbanks Co. v Simplex Supp(y Co., 126 AD2d 882, 511 YS2d 171 [3 1<.1 Dept 1987]). Bare denials, such as those asserted by M 'rkle without more, is insufficient to defeat plaintiff's motion for summary judgment (see 1130 A11derson Ave. Real~y Corp. v Mina Equitie.\· Corp. , 95 AD2d 16 9, 465 YS2d 511 l l si Dept l 981 J). ·'T he denials in defendants answer ar insufficient to defeat the motion for summary judg 1cnC (New York lliglter Education Services v Ortiz, 104 AD 2d 864, 685 479 NYS 2d 9 10 I 3rd Dept 19841 citation omilled ). A defendant cannot sh ltcr himself behind general or specific denials, or denials or knowledge or information sufficient to form a belief. I le must show that his denial or his defense is ot false and sham , but interposed in good faith and not for delay (s ee Dwan v Massareue, 199 AD 872, 192 YS 577 I l ' 1 Dept l 9221 rev on other grounds) . Merkle ·s denials or information sufficient to form a belief are patently insunicient as a matter or law, and summary judgment will be granted when "the Answer proffers no thing more than general denials" (Fairbanks Co. v Simplex Supply Co., 126 AD2d 882 5 11 YS2d l 71 I3'd Dept 1987 J). "Where .. . the cause or action is based 1pon documentary evidence, the authenticity of which is not dispute i, a general denial, without more, will not suffice to raise an issue or fact" (Gould v McBride, 36 AD2d 706, 319 NYS2d 125 11 s i Dept 197 I I; c{f/d 29 NY2d 768, 326 NYS2d 565 11971 J). '"An affidavit from one who has no personal knowledge of the operative fa ·ts is without probative value and consequently is insufficient to defeat the motion'' (Bronson v Algonquin Lodge Ass '11 , Inc. 295 AD 2d 681 , 744 YS 2d 220 I 3r<1 Dept 20021 citations omitted) ; see also Sturtevant v Home Town Bakery, 192 AD 2d 904. 597 YS _d 176 l 3r<1 Dept l 9931). It is also well settled as a matter or law that an attorney"s anirmation or conclusory assertions no t base upon personal knowledge, but hearsay, is I gail y ins tlTici nt to rai ·ca material issue of fact to de teat a summary judgment motion (see Wi11ter v Black, r AD 3d 1208, 943 NYS 2d 909 [ 2nu Dept 2012 J; Currie v Wil/1011ski, 93 AD 816, 94 l YS 2d 218 I 2"d Dept 2012 J; la cone v Passmtisi, 89 AD 3d 99 I, 933 NYS 2d 373 I 2"u Dept 201 1 I: Nicolia v Nicolia, 81 AD 3 l 327, 924 NYS 2d 509 I 2"0 Dept 20111; Groboski v Gm(fry, 74 AD 3d 1524, 903 NYS 2d 203 I 3r<1 Dept 2010ri ]; 2 N. St. Corp. v Get~y Saugerties Corp., 68 A D3d 1392, l 395, 892 NYS2d 217 [3rd Dept 20091· Lampkin v Chan, 63 AD 2d 727. 891 YS 2d 1 l 3 I 2 11 <1 Dept 2009l;Palo v Principo, 303 AD 2d 478, 756 YS 2d 623 l 2"J Dept 2003 ]; Zuckernum v City of New York, 4) Y 2d 557 427 YS 2d 595] 1980J) Mcrkcl's allegations in his affidavit in support of the cross motion are consistently vague and arc set forth in conclusory statemc t and ·re therefore without merit. The affidavit of t he licensl..!d process server, Thomas Burke dated July J 6l . 2012 ind icates that in addition to personally serving Merkel pursuant to CPLR 308 I I I at the condominium address he also served a copy of RPAPL § 1303 on colored paper along with th RPAL ~ 1320 notice (se e Aurora v Loau Services, LLC v Weibaum 85 AD 3d 95 , 923 NYS 2d 6091 2 11 <.1 Dept 20 I I j). In a Reply Affirmatio n, plaintiff has submitted a subsequent affidavit by licensed process server, Thomas Burke. wherein he reaffirm t at he served Merkle with a copy or the RP AP L § 1303 notice which was printed on blue paper. Accordingly, the Court finds Merkel a ffidavit is insufficient to rebut the presumption of proper service created by the proces · server' · affidavits (accord Deutsche Bank Nat. Trust Co. v Jagroop, 104 AD 3d 723, 960 YS 2d 488 I 2nd Dept 2013 J; Bank of New York v Espejo, 92 AD 3d 707, 939 NYS 2d I 05 I 2"u 2012 ]. Furthermore, the serving of a RP APL§ 1303 notice is not a condition precedent to fo reclose on a condomini um [* 5] B<I Mmwgers of Villas Co11domi11ill111 v Merkel /Jule.,· No.: 20087 Page5 lien fo r a failure to pay i.:ommon charges (see S iegels' Practice Review, Scp ·cmber 20 12; 249 Siegel's J>rac . Rev. 2; New York I ,aw and Practice Real Property § 4 1: 1, June 20 13; Directors of House Beautiful at Woodbury llomeowners Association, Inc. v Godt, 96 AD 3d 983 . 947 YS 572 f 2".J Dept 20 12J). Merkle's Fi r ·t Affirmative Defense alleges that the plaintiff lacks standing to maintain this foreclosure ac tion and thus req ui res an inquiry by this Court (see Bank <~fNew York v <iilverberg, 86 AD 3d 274. 926 NYS 2d 5321 2"d Dept 2011 J). Mcrkle's counsel in his affi rmation contends that in order to commence a foreclosure action, a plainti ff mu: t hav' ' legal or equitable interest in the mo rtgage ( see Wells Fargo Bank, N.A . v Mllrchio11e, 69 AD ~ d 204; 923 YS 2d 6091 2"d Dept 20 I I I). Contrary to co unsel': assertions. plaintiff is not forec losing on a mortgage. Plaintiff is foreclosing in an attempt to collect unpaid ommon charges allegedly owed by Merkel. The condominium form of ownership of real property may be de ·cri hed as a division o f real property into individual un its and com1 on elements in which an owner holds title in fee to his individual unit as wel l as retaining an un ividcd interest in the common element· of the parcel ( see Schoninger '' Yardllrm Beach Homeowners Ass'n, Inc., 134 AD 2d 1, 523 YS 2d 523 l 2"d Dept 1987 I). A purchaser of a unit in a condomin ium enters into a bind ing relationship with every other unit by both contract and statute. One of the clements of that relati onship is the obligatio n to pay common charges irrespective of any dispute the individual unit owner may hav' w ith an thcr unit own r the board of managers, or t ird parties acting on behalf or the board of manag rs ( s ' C RPL § 339-ej) . Once created, the administration or the condominium ' s affairs is governed principally by the by-laws, which, arc in essence an agreement amongst ind ividual unit owners as to the manner in which the condo minium will operate and which sets forth the respective ri g hts and obligations of unit owners, both v.:ith resp ct to their own units and the condominium ' : common clements (see Murphy v State, 14 AD 3d 127, 87 Y: 2d 120 I 2"u Dept 2004 I; RPL § 339-v. ). T he obligation or a unit owner to pay common charges and .·pecial assessments cannot be avo ided ( see RP f, § ; Board < Managers <~f First Avenue ?f Co11domi11i11m v Sham/el, 143 Misc. 2d I 084, 542 NYS 2d 466 [ NY City Ci ... Ct. 1989 l) . RPL ~ 339-z provides that a con o 1inium board or managers shall have a lien again t a unit owner for unpaid common charges. Merkel docs ot deny the existence of the lien. Article 9-B of the Real Property Law, known as the Condominium J\ct, p rmits th establishment of a lien for unpaid common charges in favor of the Boar or Managers of a condorn inium complex ( sec RPL §§ 399-v; 339-z ), and it permits the Board or Managers to commence a foreclosu re actio to collect the monies owed to it as common charges. The plaintiff has complied with RPL §~ 339-z; .. 39-aa by filing a verified lien with the county clerk, and th lien has been perfected. Therefore the first affirmati ve defense is dismissed as a matter of law. In opposition lo the motion, Merkel has failed to submit any vidcntiary proo r to pursue or support any or his remaining pleaded defenses (see, Argent Mtge. Co., LLC v Me11tesa11a, 79. D3d 1079, 915 N.S. 2d 591 I 1"u Dept 20101; Citibank, N.A . v Souto Gejfen Co.. 231AD2d466, 647 YS2d 467 fl ' 1 Dept 19961; see generally, Alvarez v Prospect Hospital, 68 NY2d 320 508 NYS2d 923 [ 19861). !I erk le· s affirmative defenses arc conclusionary and lack any specific factua l allegations to support them (see Fotiou v Goodman, 74 J\D 3d 1140, 905 YS 2d 626 [ 2cl Dept 2010J; Vittorio'' U-Haul Co., 52 AD 3d 823, 861 YS 2d 726 l2"u Dept 20081; Velasquez v Gomez , 44 AD 3d 649 , 843 YS 2d 368 l 2d Dept 20071 · Restrepo v Rockland Corp. .. 38 AD Jd 742, 832 NYS 2d 272 l 2"d Dept 200TI) and except for the first affirmativ defense which is addressed herein they arc not pursued in defendant ' s opposition papers. Therefore, inasm uch as Merkle has failed to demonstrate any triab le issue o f fact, or merit as to any defense in this lien forecl urc action (see Flagstar Bauk v Bellafiore, 94 AD 3J l 044, 943 YS 2d 551 I 2 11 d Dept 2012 J); a, such, the remai ning anirmativc defenses arc also dismissed as a matter law. or [* 6] Bd Managers of Villas Co11domi11ium v Merkel Index No.: 20087 Page 6 In dismis. i g the answer and affirmative defenses the Court rejects the argument that the lack or discovery compromi: ~d \.1erkl " s ability to adequately oppose the comp!· in t. .. It i · well ,·cttlcd that a claimed need for discovery, without so 1e cvidcntiary basis indicating that discov "ry may lead to relevant evidence is insuf!icicnt to avoid the award o r summary judgment" (Hariri v Amper, 5 1 AD 3d 146, 152, 854 NYS. 2d 1:?.6 I I st Dept 20091: ci!alion omilled ·see also Bank of America v Tatham, 305 AD 2d 183, 757 YS 2d 55 I 2"'1 Dept 2003 I). I !ere, 1erkle has not indicated any basis to conclude that rel ·vant evidence to support his claims might be found throu 'h discovery. ·'[Mjere hope and speculation that addi tional discovery might uncover evidence suCficient t ra ise a triable issue of fact is not sufficient" to war ant den ial or a motion for sumnnry judgment ( Sas~·on v S elina Mfg. Co., Inc., 26 J\D 3d 487 , 488, 810 YS 2d 500 I 2d Dept 20061). The granting or a summary j udgment moti on should not be postponed to allow for discovery where the proponent or the additional discovery has fai led ··10 demonstrate that the discovery sought would produce relevant evidence" (Frith v Affordable llomes of Am., 252 J\D 2d 536, 537, 676 YS 513 I 2 11 d Dept 1998 I); '·and cannot be avoided by a claimed need for d iscovery unless some cvidcntiary basis is offcrcd to suggest that the discovery may lead to relevant 'videncc" (Bailey v New York City Tr. Autli., 270 J\D 2d 156, 704 NYS 2d 582 l 2" 0 Dept 2000 I; see also Freiman v JM Motor Holdings NR 125-139, LLC, 82 AD 3d 1154, 920 YS 2cl 1891 2"d Dept 2011 l; Dempaire v City of New York, 61 AD 3d 816, 817, 877 YS 2d 224 f 2 110 Dept 2009] ; Conte v Frelen Assoc., I.LC, 51 J\D 3d 620, 8-8 YS 2d 258 [ 2"d Dept 2008]: Lopez v WS Distrih., Inc., 34 J\O 3d 759, 825 YS 2d 5 16 I 2"J D pt 2006 I). Furthermore, Merkle did not move to compel discovery or show that he has had an inadequate opportunity to conduct discovery before submitting pposition papers to the plaintilrs instant motion for summary j udgment ( see Titian Communications, lnc.,formerfr known as Ohio Telecom. Inc. v Diamond Pit one Card, Jue., 94 AD 3d 740, 941 NYS 2d 280 [ 2"d Dept 20 12 I). Furthermore the Court fi nds that Merkle 's attempt to dismiss plaintifr, mot ion based upon it submitted pleadings is without meri t (sec Siegel ' s Y Prac Chapter 9. Pleadings§§ 214, 217 f2013J; Mortgage Liens in ev York, Ch. 17: .' 17.3; Election of Remedies [ 20 13 ). Merkel 's reliance on Greystoue Bank v 15 Hoover Street, 29 1isc :d 1209(/\) 95 YS 2d 307 f Sup Ct assau County 2010]) is without merit (see CPLR3014). The assertions by Mer !e's counsel that summary j udgment is premature because discovery is ongoing and their demands ha e not been answered is rejected. CPLR 3212 ffl provides that ·· shou ld it appear from anidavits submitted in opposi tion to the motion that facts essential to justify opposition may exist but that it cannot be then state , a co urt may deny the motion or may o rder a continuance to permit affidavits or disclosure to be had and may 1T1a e such o ther order as may be just. '' One seeking iscover " must offer an ev iclentiary basis to show that di, covcry may lead to releva nt evidence and that essential to justify oppos ition to the motion were exclusively within the knowledge and control of the plaintiff." ( Martinez v Kreychmar, 84 J\D 3d 1037, 923 NYS 2d 648 f 2"0 Dept 20111; s e Seaway Capital Corp. v 500 Sterling Realty Corp., 94 AD 3d 856, 941 NYS 2d 871 [2"d Dept 20121; Swedbank AB v Hale Ave. Borrower, LLC 89 AD J d 922 , 540 I 2"d Dept 2011 ]; McFtu(ye11 Consulting Group, Inc. v Puritan Pride, 87 J\D 3d 620 928 Y ' 2 87 I 2"d Dept 20 11 ]; Urstadt Biddle Prop., inc. v Excelsior Realty, 65 J\D 3d 1135 885 YS 2d 5 10 f 2nd Dept 2009 I). The ''mere hope or speculation that cvid nee sufficient to defeat a motion ror summary judgment may be uncovered by further discovery is an insuffi icnt ba.·is for denying the motion"( Woodard v Thomas 77 AD 3d 738, 740, 913 YS 2d 103 I 2" 0 Dept 20 I 0 I internal citations ornil!ed ); see also Cajas-Romero v Ward, I 06 J\ 0 3d 850, 96 ~ YS :?.d 559 I 2"0 Dept 20 I:' J: Friemllamler Org., LLC v Ayoride. 94 J\D 3d 693, 94.., NYS 538 [ 2"0 Dept 20 12 I; Stoia11 v Reed, 66 J\D 3 1278, 888 YS . 2d 639 l 3rd Dept 20091). 'f n the abs nee of some evidentiary showing suggesting that disco cry will yield material and relevant evidenc it is not an abuse of the court"s [* 7] Bd Ma11agers of Villas Co11domi11i11m v Merkel lude.1!..' No.: 20087 Page 7 discretion to deny the req uest ( Saratoga Assoc. Landscape Architects, Architects, Engrs. & Plmmers, P.C. v Laufer Dev.Group, 77 /\D 3d 1219, 1222, 910 YS 2d 571 f 3 rd Dept 20101 ;111ernuf dtation 0111;11ed) . Furthermore, there is no court order requiring plaintiff to comply with discovery (see Emigrant Mtge. Co., file. v Beckerma11, I 05 /\ D 3d 895, 964 NYS 2d 548 I 2"d Dept 2013 J). or In view the fore going, the court finds that laintiff establis ed a pti 1a fac ie case for summ ary j udgment based upo n t e subm issions which vidcncc the failure of Merkle to pay t e common charges due and -..dition . II o wing in accord anc' w ith the by-laws ( see RPL ? 339-u; ew York Jurisprudence, Second 1 Condominiums; § For closure ·). The Court finds that in opposition, Merkle has failed to raise a factual issue vis-a-vi s a viable defense to plaintiff's claim. /\ccording ly , plainti ff is awarded ·ummary judgment strik ing Merklc ' s answer and affirmati ve defenses . Under these ci rcumstances, Merkel ha. fa iled to come forward with any evidence showi ng th· existence of a triable issue of fact with respect to any defense. therefore th' plainti IT is entitled to summary j udgment ( see Rossrock Fund fl, L.P. v Commack In v. Group, Inc., 78 /\D J d 920, 912 YS 2d 71 f 211 c1 Dept 2010 I; M atter ofA ug11sti11e v Bank United FSB, r !\ D 3d 596. 905 YS 2d 652 I 2"u Dept 20 I 0 I: Fed. llome Loan Mtge. Corp.. v Karastathis, 237 /\D 2d 55 , 655 .S. 2d 63 J f 2 11 c1 Dept 1996 !). /\ccordingl y. the plaintiff's motion for ·ummary judgment and for an O rder o f Reference is granted. T he Order of Reference a modified is being contemporaneo sly signed with this Short Form O rder. This constit tes the Order and Decisi on o f the Court. Dated : L~ ___,,,,..--_ ,;· Octo ber 21 , 2013 Riverh ad .. Y FIN/\L DfSPOSITIO l &- J.S .C. xx ON-FIN/\L DISPOSITION

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