Sea Gate Assn. v Vozny
Annotate this CaseDecided on May 17, 2013
Supreme Court, Kings County
The Sea Gate Association, Plaintiff,
against
Sergey Vozny, a/k/a/ Sergery Vozny, et al., Defendants.
9026/11
Plaintiff Attorney: Alan J. Wohlberg, Esq., 2805 Avenue N, Brooklyn, NY 11210
Defendant Attorney: Raquel M. Vasserman, Esq., 161 Brighton 11th Street, 2nd Fl., Ste. 7A, Brooklyn, NY 11210
David I. Schmidt, J.
The following papers numbered 1 to 12 read herein:Papers Numbered
Notice of Motion/Order to Show Cause/
Petition/Cross Motion and
Affidavits (Affirmations) Annexed1-3; 4-6
Opposing Affidavits (Affirmations)7-8; 9, 10
Reply Affidavits (Affirmations)11;12
Affidavit (Affirmation)
Other Papers
Upon the foregoing papers, plaintiff Sea Gate Association moves for an order, pursuant to CPLR 3212, granting summary judgment in its favor against defendants Sergey Vozny, a/k/a/ Sergery Vozny, and Irina Vozny (the Voznys). By order to show cause, the Voznys move for an order 1) directing that a deposition of a board member of plaintiff be held on a date certain and 2) directing defendant JP Morgan Chase Bank (Chase) to credit to the Voznys the sum of $41,407.14 that had been taken out of their escrow account.
Plaintiff commenced this action to recover from the Voznys outstanding [*2]assessment dues and charges which are required from property owners in the Sea Gate neighborhood of Coney Island (Sea Gate). As set forth in the affidavit of Tami Maldonado, Community Manager for plaintiff, Sea Gate is a private gated community which maintains its own police force and employs a staff to maintain the streets, sewers, fencing, parks, playgrounds, and police department building, which are owned by plaintiff. The maintenance staff employed by plaintiff helps in snow clearance, and the maintenance of the beaches, parks, fences, streets, sewers and streetlights within the neighborhood. Access to Sea Gate is only available through manned security gates on Neptune Avenue and Surf Avenue. In order to pay the costs involved in operating these services, plaintiff assesses annual dues and charges on each property in the neighborhood. The assessment is based on the amount assessed by the City of New York for real estate taxes on the subject property, specifically, by multiplying the second number which appears on the "8-30% limitation" line by 13%.
The Voznys took title to their Sea Gate property by deed dated December 5, 2002. Contemporaneous with the conveyance of the property, the Voznys executed a mortgage thereon in favor of Chase to secure a loan in the amount of $330,000.00. The mortgage contained provisions obligating the borrower to pay "Community Association Dues, Fees and Assessments" and granting the lender the right to "do and pay for whatever is reasonable or appropriate" to protect the lender's interest in the property in the event that the borrower does not keep his/her promises and agreements.
It is not in dispute that the Voznys voluntarily paid the dues and charges assessed on the property until 2007. According to the complaint, the Voznys owed plaintiff a balance of $28,821.35 as of March 17, 2011. In January 2012, Chase paid plaintiff the amount of $37,037.85 from the Voznys' escrow account, which was credited toward the outstanding dues and charges.
In its complaint, plaintiff sets forth causes of action for breach of contract, quantum meruit, unjust enrichment, "recovery of dues and charges accruing to date of judgment," attorneys' fees, enforcement of covenant, declaratory judgment, deficiency judgment and "intended third party beneficiary of the mortgage." On February 15, 2012, the Voznys filed an answer containing general denials and affirmative defenses based on statute of limitations, failure to serve process,[FN1] laches, waiver and estoppel, "consent," failure to state a cause of action, unclean hands, failure to mitigate damages, and lack of standing. The answer does not contain any counterclaims against plaintiff or cross claims against Chase.
In opposition to plaintiff's motion for summary judgment on its complaint, the Voznys advance several arguments challenging plaintiff's entitlement to collect the subject dues and charges. The Voznys state that when they purchased the property, they [*3]were presented with no agreements from plaintiff nor a copy of plaintiff's by-laws. The Voznys contend that no obligation to pay dues and charges appears in the chain of title to the property, while such covenants appear in deeds to other properties in the neighborhood. The Voznys assert that use of the beaches requires payment of a separate fee by Sea Gate residents and visitors alike. The Voznys argue that services such as garbage removal and police are provided by the City of New York, and Sea Gate residents are individually responsible for snow removal from the sidewalks outside their properties. In sum and substance, the Voznys contend that not only does plaintiff lack legal standing to collect the dues and charges, but the amount assessed is disproportionate to the reasonable value of the services actually provided by plaintiff.
In Seaview Assn. of Fire Is. v Williams, 69 NY2d 987, 989 [1987]), the Court of Appeals stated that:
"Where there is knowledge that a private community homeowners' association provides facilities and services for the benefit of community residents, the purchase of property there may manifest acceptance of conditions of ownership, among them payment for the facilities and services offered. The resulting implied-in-fact contract includes the obligation to pay a proportionate share of the full cost of maintaining those facilities and services, not merely the reasonable value of those actually used by any particular resident (see, Sea Gate Assn. v Fleischer, 211 NYS2d 767, 778, 781)."
In the case cited by the Court of Appeals, Sea Gate Assn. v Fleischer (211 NYS2d 767 [1960]) ("Fleischer"), the defendant Sea Gate property owners challenged the Sea Gate Association's right to collect dues and charges. Among the arguments presented by the defendant owners was that since defendants were not members of the Association they were not bound by any of the assessments levied against them. The Fleischer court disagreed, stating:
"The right of the Association to exercise the control of the easements and to maintain them in condition so that they can be mutually used and enjoyed by all property owners has long been settled by the courts. Inherent in its right of management is the right to maintain. Maintenance costs money. Those who are entitled to enjoy that easements are the ones who must pay the cost of maintenance. Membership in the corporation is not that which gives the right to the property owners to enjoy the easements and services provided by the Association. It is the ownership of property which effects that result. When these defendants bought their property they knew of all of the existing conditions imposed upon ownership in the area. All others were open and visible to them and should have been known to them. When they first entered the Gate to visit the property they proposed buying, the defendants immediately became aware of the presence of policemen, of the construction of paved streets and sidewalks, of street lighting, and all other conditions in this private community. Certainly the thought must have occurred to them that someone must pay for the maintenance and construction of those facilities. It is a conceded fact in this case that they knew they were buying into a private community. If [*4]they wanted to join the Association they had a right to do so, but their failure to exercise their right to join did not relieve their property from the obligation of sharing the cost of maintenance of the facilities and services made available to all the owners" (Fleischer, 211 NYS2d at 778-779).
The Fleischer court further stated:
"[W]hen the defendants undertook to purchase property in this community they impliedly accepted an offer by the plaintiff to care for the streets, to provide policemen, to provide lights, to provide beach facilities, to provide a sewage system, and to provide other services necessary to the well-being of a community and that when they impliedly accepted such offer they impliedly agreed to pay a proportionate share of the cost therefor. Their share of the cost was not dependent upon the precise measurement of the facility or service actually used by them, but upon the precise measurement of the services or facilities made available to them if they desired to use it, as long as such facility or service was generally available to each and every property owner of the community and was for the benefit of the entire community.
Such implied agreement is one implied in fact. It requires the defendants to accept the terms offered by the plaintiff. The purchase of the property by the defendants constitutes such acceptance. Such terms included the obligation to pay a proportionate share of the cost of maintaining the facilities and services and not merely the reasonable value of such facilities and services to the defendants as measured by the use made by them of such facilities and services. To permit individual property owners to determine for themselves precisely what portion of the services or facilities they would be willing to accept and what services and facilities they would reject would make it impossible to run a community such as this and to prepare a budget for the expenses thereof" (Fleischer, 211 NYS2d at 781).
Similarly, the private character of Sea Gate should have been readily apparent to the Voznys upon their purchase based on the presence of a perimeter fence, ingress only through two manned entrance gates, parking permit requirements and presence of Sea Gate police vehicles. Despite the absence of any statement in the Voznys' deed concerning the dues and charges, and the Voznys' perception that the services provided by plaintiff do not justify the amount of their assessment, established case law makes clear that the Voznys became obligated to pay the dues and charges assessed by plaintiff upon taking title to the subject property. It is of no moment that the individual or entity from whom the Voznys purchased the subject property did not inform them of an obligation to pay plaintiff's charges, that the Voznys did not receive a copy of plaintiff's by-laws or that the Voznys never entered into any written agreement directly with plaintiff. The Voznys' agreement to pay the dues and charges was "implied in fact by [their] purchase of [*5]property within the Association's gated community" (Sea Gate Assn. v Zelinskaya, 38 Misc 3d 141[A], 2013 NY Slip Op 50223 [U] [2013], *1-*2). Significantly, the Voznys duly paid plaintiff the assessment dues and charges for five years following their purchase of the property without any ostensible protest.
As a result, plaintiff's motion for summary judgment is granted to the extent that the Voznys shall pay plaintiff all dues and charges assessed by plaintiff which are outstanding to date. The order to show cause brought by the Voznys seeking a deposition of plaintiff and return of the monies paid to plaintiff by Chase toward the Voznys' arrears is denied.
Settle judgment on notice.
The foregoing constitutes the decision and order of the court.
E N T E R,
J. S. C.
Footnotes
Footnote 1: Inclusion of this jurisdictional defense is in contravention of this court's order dated January 10, 2012.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
