Greens at Half Hollow Home Owners Assn., Inc. v Greens Golf Club, LLC

[*1] Greens at Half Hollow Home Owners Assn., Inc. v Greens Golf Club, LLC 2013 NY Slip Op 50984(U) Decided on June 5, 2013 Supreme Court, Suffolk County Pines, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 5, 2013
Supreme Court, Suffolk County

Greens at Half Hollow Home Owners Association, Inc., for Itself and on Behalf of the Residents of the Greens at Half Hollow, BOARD OF MANAGERS OF THE GREENS AT HALF HOLLOW CONDOMINIUM I, BOARD OF MANAGERS OF THE GREENS AT HALF HOLLOW CONDOMINIUM II, BOARD OF MANAGERS OF THE GREENS AT HALF HOLLOW CONDOMINIUM III, BOARD OF MANAGERS OF THE GREENS AT HALF HOLLOW CONDOMINIUM IV, BOARD OF MANAGERS OF THE GREENS AT HALF HOLLOW CONDOMINIUM V, MARVIN RICHMAN, JOEL WEISENFELD, HOWARD SCHULMAN, and SHEILA PARISER, Plaintiff,

against

Greens Golf Club, LLC, And GREENS AT HALF HOLLOW, LLC, Defendants.



22049-2011



Attorney for Plaintiffs

Richard Hamburger, Esq.

Hamburger, Maxson & Yaffe, Knauer & McNally, LLP

225 Broad Hollow Road

Suite 301E

Melville, New York 11747

Attorney for the Defendant Greens Golf Club

Ronald Rosenberg, Esq.

Rosenberg, Calica & Birney, LLP

100 Garden City Plaza

Suite 408

Garden City, New York 11530

Attorney for the Defendant Greens at Half Hollow

John A. Harras, Esq.

Harris Bloom & Archer LLP

445 Broad Hollow Road

Suite 127

Melville, New York 11747

Emily Pines, J.

In this action, a condominium home owners association, the boards of managers of five separate condominiums, and four individual unit owners sue the successor in interest to the original developer and the owner/operator of the private golf club located adjacent to the development. The fourteen causes of action asserted by plaintiffs stem from three principal allegations. First, plaintiffs claim that the defendants violated certain provisions of the Code of the Town of Huntington applicable to the development. Second, the plaintiffs claim that a covenant mandating that owners of units within the development pay social membership fees in the private golf club violate numerous provisions of law. Third, the plaintiffs claim that the defendants are obligated to pay a portion of the expenses incurred for the repair and maintenance of common areas over which defendants have an easement. The plaintiffs seek injunctive and declaratory relief, as well as compensatory [*2]damages. The defendants move for summary judgment dismissing the complaint as asserted against them on various grounds including lack of standing, stare decisis, res judicata, collateral estoppel, statute of limitations and documentary evidence. The plaintiffs cross-move for partial summary judgment on the issue of liability on several causes of action, and seek discovery on their claims for money damages.

The plaintiffs are the Greens at Half Hollow Home Owners Association, Inc. (hereinafter "HOA"), Board of Managers of the Greens at Half Hollow Condominium I, Board of Managers of the Greens at Half Hollow Condominium II, Board of Managers of the Greens at Half Hollow Condominium III, Board of Managers of the Greens at Half Hollow Condominium IV, Board of Managers of the Greens at Half Hollow Condominium V, Marvin Richman, Joel Weisenfeld, Howard Schulman, and Sheila Pariser. The defendants are the Greens Golf Club, LLC (hereinafter "Golf Club") and Greens at Half Hollow, LLC (hereinafter "GHH"), successor in interest to the original developer, S. B. J. Associates, LLC (hereinafter "SBJ").

Factual and Procedural Background

The history of the development of the subject condominiums, a community center, and the adjacent golf course facility is set forth below.

In October 1999, SBJ, the predecessor in interest to GHH, purchased a 382-acre parcel of real property located in the Town of Huntington (hereinafter "Town"). At that time, the property was zoned R-80, which permitted single-family residences on two-acre lots.

In or about November 1999, SBJ submitted a Proposed Master Plan (hereinafter "Master Plan") for the development of the property to the Town. The Master Plan states, in relevant part, as follows:

In addition to its 18-hole executive golf course . . . the development will have a 20,000 square foot community center, swimming pool and tennis court complex located adjacent to the clubhouse for the golf course.

***

The community center located adjacent to the golf course clubhouse will be an [*3]expansive facility, offering indoor and outdoor pools, saunas, multi-purpose meeting rooms, a wellness center and a café. The community center will not include catering facilities open to non-residents.

***

Approval of the Master Plan by the Town Board of the Town of Huntington would occur concurrently with the zoning of the site as a Planned Unit Development (PUD). (See proposed PUD regulations.)

***

The golf course clubhouse will contain a golf cart area, locker rooms and light refreshment area for golfers. The approximately 20,000 square foot community center will provide a variety of social and recreational opportunities and services for resident of The Greens at Half Hollow including indoor swimming pool, health club, library and computer center, creative arts room, theater, bank/automated teller machine, etc. The community center will not be available to non-residents of the Greens at Half Hollow for catered events.

SBJ also submitted proposed zoning regulations with its Master Plan which state, in relevant part:

1.Use Regulations. In the SRC Sub-district, a building or premises shall be used for the following purposes only:

(a)Dwellings . . .

(b)Outdoor recreational facilities, including swimming pools and tennis courts for the exclusive use of residents of the entire R-PUD and their guests.

(c)Community building not to exceed 25,000 square feet, which may contain community indoor pools, lockers, showers, support services and passive recreational facilities for the use of residents and their guests, including but not limited to meeting rooms, library, computer rooms, other passive activity facilities, a beauty salon and a gift shop; [*4]

(emphasis added).

SBJ applied to amend the Zoning Chapter of the Town Code of the Town of Huntington (hereinafter "Town Code") to create a Residential Planned Unit Development (hereinafter R-PUD) and to change the zoning of the property from R-80 to R-PUD.

In September 2000, the Town Board adopted the Master Plan, issued SEQRA findings, granted SBJ's application to re-zone the property and materially amended Chapter 198 of the Town Code by adding § 198-21.2, entitled "R-PUD The Greens at Half Hollow Planned Unit Development District."

Town Code § 198-21.2(A) of the Town Code provides:

Purpose and intent. The purpose and intent of the Greens at Half Hollow Planned Unit Development District (R-PUD) . . . is primarily to address the housing and recreational needs of senior citizens, and to facilitate the design and development of a planned community consisting of a variety of housing types, accessory uses and open space. These R-PUD regulations are intended to establish development parameters within which individual site plans and/or subdivisions will be developed in a manner consistent with the planning objectives described in the Greens at Half Hollow Master Plan, and the Greens at Half Hollow Master Plan Map (collectively the "Greens at Half Hollow Master Plan"), both adopted by the Town Board simultaneously with this section.

Town Code § 198-21.2(C) provides, in relevant part as follows:

(4)The Community open space shall be designated in the Greens at Half Hollow Master Plan. Open space shall not include . . . (iii) community buildings and clubhouses . . . (vi) accessory structures such as sheds, swimming pools and tennis courts . . .

***

(5)A homeowners' association created pursuant to the laws of the State of New York shall own and maintain all common areas within the R-PUD, including roads, drainage structures and community open space, [*5]pursuant to such reasonable conditions as the Town Board may require.

***

Town Code § 198-21.2(F)(1) provides, in relevant part, as follows:

Use regulations. In the SRC Subdistrict, a building or premises shall be used for the following purposes only:

(a)Dwellings . . .

(b)Community building not to exceed twenty-five thousand (25,000) square feet, which may contain community indoor pools, lockers, showers, support services and passive recreational facilities for the use of residents and their guests . . . The community building and its associated outdoor recreational facilities, including swimming pools and tennis courts, shall be for the exclusive use of residents of the entire R-PUD and their guests.

(c)Golf courses, including driving ranges, maintenance buildings, clubhouse and other accessory facilities necessary to operate and maintain a golf course. The golf course shall be private. Membership shall be limited to residents of the entire R-PUD. Notwithstanding the foregoing, memberships may be made available to the residents of the surrounding community the Town of Huntington. However, if such memberships are offered, the membership for the golf course shall not exceed five hundred (500) members.

Town Code § 198-21.2(L)(1) provides, in relevant part, as follows:

Site plans for the development of the uses depicted on the Greens at Half Hollow Master Plan shall be submitted to the Planning Board for review and approval before an application for a building permit is made.

It is undisputed that neither SBJ, GHH nor the Golf Club ever commenced a proceeding challenging any provisions of the R-PUD zoning statute as enacted by the Town. [*6]

According to the defendants, as SBJ developed site plans for the project in 2001, it determined that it was unnecessary and wasteful to construct two separate buildings (community building and clubhouse) and instead decided to combine the two uses into one building to serve as a clubhouse for the entire community.

During the planning process, by letter dated July 16, 2001, Michael Marinis, P.E., of Barrett, Bonacci & Van Weele, P.C. (hereinafter "BB & V"), on behalf of SBJ, advised the Town, among other things, that "[t]he administration office facility for the HOA is to be located in the proposed club house."

By letter dated August 6, 2001, the Town advised BB & V, in relevant part:

As previously noted in the July 19, 2001 memorandum and as discussed and understood between the applicant, their representatives and with Town representatives during the July 20, 2001 meeting, submission of the partial site plan application shall include the community building for the residential units and the club house building for the golf course as well as any and all ancillary buildings associated with those uses located within the confines of the 196.88 acre portion of proposed Lot No. 74. The community building for the residential units and the golf club house for the golf course are an integral part of the partial site plan application currently under review. Said application can not be approved or conditionally approved until such time as all ancillary buildings and structures associated with the residential units and the golf course use are depicted on the development plans under the same phase and section (Phase 1 Section 2) for review and acceptability by the Town Planning Board. Once all building [ground floor areas] are included on the plans, the partial site plan application fee will then be recalculated in accordance with the Town of Huntington site plan application fee requirements.

BB & V responded by letter dated September 13, 2001, which states, in relevant part: [t]his partial site plan was revised to include the community building and golf club house. Parking and gross floor area information for these units is included on sheet SP-1."

By cover letter dated November 13, 2001, the Town transmitted comments to BB & V, including, in relevant part:

The plans do not distinguish between the 20,285 square foot community' [*7]portion of the combined 33,487 square foot club house/community building' and the 20,285 [sic] square foot club house' portion of said building. And even though parking has been assessed at 1 space per 400 square feet (1:400) per Town Code § 198-21.2 I(3) for the 20,285 square foot community' portion of the building, no parking has been assessed for the 13,202 square foot club house' portion in accordance with Town Code § 198-21.2 I(1) . . . Therefore, provide a breakdown between the community' portion of the building and the club house' portion of the building as well as provide a component use and square footage breakdown of the club house' portion of the building . . . to determine compliance with Town Code § 198-21.2 I(1) and § 198-47.

The site plans submitted by BB & V on or about January 17, 2002, depicted a 33,845 square foot building identified as "Community Building/Golf Course Club House" and four accessory tennis courts, an outdoor pool, and parking lot. The plan reflects that of the 33,845 square feet, 13,560 square feet was designated Club House and 20,285 square feet as Community Building. Ultimately, the Town Planning Board approved the partial site plan submitted by SBJ that, among other things, combined the golf clubhouse and the community building into a single structure.

By deed dated May 28, 2002, SBJ sold the Property to defendant GHH.

In order to proceed with the development, GHH was required to apply to the Town for a building permit. As part of this application process, GHH's architects submitted a "Community Building Lower Level Area Plan" and the "Community Building Upper Level Area Plan", both of which are dated June 6, 2003. These plans delineate certain portions of the lower level (7,765 square feet) and the entire upper level (15,587 square feet) as "Community Building Area" for a total Community Building Area of 23,574 square feet.

The Town thereafter issued a Building Permit dated June 18, 2003, to GHH for "ERECT 2 STORY COMMUNITY BUILDING, 23,594 SQ FT, WITH GOLF COURSE ACCESSORY FACILITIES, 11,162 SQ FT, HOME OWNERS ASSOCIATION, SITE & DRAINAGE LETTER."

By deed dated March 8, 2004, GHH conveyed a portion of Lot 74, approximately 84 acres, to defendant Greens Golf Club, LLC (hereinafter "Golf Club"), which was subsequently developed as a golf course and clubhouse and run [*8]as a private for-profit business by the Golf Club.

The Town issued a Certificate of Occupancy dated April 30, 2004, for the structure describing the project as "ERECT 2 STORY COMMUNITY BUILDING, 23,594 SQ FT., WITH FIREPLACE, INDOOR SWIMMING POOL 7 GOLF COURSE ACCESSORY FACILITIES, 11,162 SQ FT. SITE & DRAINAGE LETTER."

C & R Declaration

It is undisputed that pursuant to the Declaration of Covenants, Restrictions, Easements, Charges and Liens dated November 12, 2001 (hereinafter "C & R Declaration"), recorded on December 17, 2002, the Golf Club and its members, guests and users, have an easement over the roadways within the development. It is also undisputed that the Golf Club has used the roads and other common areas under the perpetual easement at no charge.

Article VI of the C & R Declaration entitled "Covenant of Maintenance Assessments" provides, in relevant part:

Section 1. Creation of the Lien and Personal Obligation. The Developer, for each Unsold Home then subject to the Declaration of Covenants, Restrictions, Easements, Charges and Liens owned by it within The Properties, hereby covenants and each Home Owner of any Home by acceptance of a deed therefore . . . shall be deemed to covenant and agree, to pay to the Association such Common Expenses as are fixed by the Association's Board of Directors and assessed to the Home Owners as hereinafter provided.

Additionally, the Declaration of Condominium provides, in relevant part:

EIGHTH: Common Interest. Each Home Owner shall have such percentage interest in the common elements as is set forth in Schedule B attached hereto and shall bear such percentage of the common expenses of the Condominium . . . The percentage of interest of each Home in the common elements has been based on equal percentages within separate classifications of Homes, as of the date of recording this Declaration. [*9]

Additionally, the C & R Declaration provides, in relevant part, as follows:

Each Home Owner is obligated to be a Social Member of the Golf Club and pay the then current Social Membership dues. Each Home Owner is required to remit the Social Membership dues directly to the Golf Club owner on a monthly basis. Unpaid Social Membership dues payable to the Golf Club shall constitute a lien against the members Home as set forth in Article X of this Declaration.

In 2004, monthly Social Membership dues were $100. By 2010, the monthly dues had increased to $155. In 2010, the Golf Club collected mandatory Social Membership fees from homeowners totaling approximately $2,430,240. In 2012, the Golf Club increased the monthly fee to $165.

By letter to the Town Supervisor dated May 17, 2011, Henry Hasson, a Town taxpayer, resident of The Greens, and the then President of the HOA Board, requested the Town to enforce Town Code § 198-21-2(F)(1)(b). The letter states, in relevant part:

According to the zoning for the Greens at half Hollow, the HOA is supposed to own and maintain a community building "not to exceed twenty-five thousand (25,000) square feet" to house a variety of facilities and services for residents of the HOA. See Town Code § 198-21-2(F)(1)(b). As of this writing, the Greens at Half Hollow has been fully developed and sold and no such building has been given to the HOA. As a resident of The Greens, I am personally aggrieved by this breach of the local zoning.

Please accept this letter as my formal request to the Town to enforce the above-cited provision of the Town Code. Should the Town fail to enforce that provision within ten (10) days, I will join with my neighbors and seek enforcement by private action pursuant to Town Law § 289(2).

Complaint

The "Introduction" section of Plaintiffs Verified Complaint states, in relevant part:

1. In this action, plaintiffs seek redress against the developer and owner of the [*10]private golf course . . .for what is, essentially, the theft of the community building, outdoor swimming pool and tennis courts that were to be owned and operated by the [HOA]. The taking occurred as a result of the illegal incorporation of the realty into the private golf course.

2. In addition, the defendants have used and occupied the community center building entirely for their own benefit, renting the facilities to non-residents, and making absolutely no contribution to the costs incurred by the [HOA] for security, insurance, landscaping, street maintenance, lighting and snow plowing from which they and their private guests and private golf club members benefit.

3. And, while the [HOA] is banned from using the community center building for its administrative offices, and while residents are often excluded from enjoying the center's facilities, the golf course owner collects mandatory monthly fees which currently total more than $2 million per year. These fees are perpetual and can be unilaterally raised at the whim of the golf course owner. Yet, there is no corresponding obligation to provide any minimum level of service or benefits at the community center facilities. Every decision, large or small, affecting the use of these facilities, is under the absolute control and unlimited discretion of the golf course owner. The residents have no say whatsoever. Their input is limited to writing their mandatory monthly checks.

4. As will be detailed hereinafter . . .the developer, although required to build two separate buildings — a community center building with accessory outdoor swimming pool and accessory tennis courts (all to be owned by the [HOA]), and a separate golf club building (to be privately owned) — combined the two uses into a single building.

5. The Town of Huntington allowed the developer to do this, provided that the community center portion of the building was clearly delineated. Although the building permit application, the building permit, and the certificate of occupancy all effect the division of the building into separate community center and golf club areas, the developer deliberately excluded the entire combined building and its accessory outdoor swimming pool and tennis courts from the areas embraced by the five separate condominiums which constitute The Greens, as each condominium map was filed. The developer then conveyed this remainder area . . . including the combined community center/golf club building with accessory outdoor swimming pool and tennis courts, to a separate [sic] owned and controlled affiliate that was organized to operate the private golf course.

Plaintiffs assert fourteen causes of action. The first cause of action is asserted [*11]against the Golf Club and seeks to enforce the Town Code by (1) compelling the Golf Club to convey the community building/clubhouse and its associated facilities to the HOA subject to (a) an exclusive and irrevocable license of the Golf Club to use and occupy those portions of the 11,162 square footage of space in the building allocated to its use depicted on the June 6, 2003 Community Building Lower Level Area Plan, which are strictly accessory to the golf course, (b) a non-exclusive license of the Golf Club to use and occupy the common access areas, locker rooms with associated bathroom facilities, and the kitchen, and (c) the HOA's right of access to all building systems regardless of their location in the combined building; and (2) prohibiting the Golf Club from utilizing any community building portions of the combined building and its associated outdoor facilities for private parties, affairs and events by non-residents. The HOA alleges that it has standing, on behalf of its members, pursuant to Town Law § 268(2) to enforce the local zoning. It is further alleged that, pursuant to Town Law § 268(2), Plaintiffs Marvin Richman, Joel Weisenfeld, Howard Schulman, and Sheila Pariser have standing to enforce the local zoning.

The second cause of action is asserted against the Golf Club and GHH and seeks the imposition of a constructive trust on the combined community building/clubhouse and its associated outdoor facilities in favor of the HOA, as well as an award of money damages against the Golf Club and GHH "arising out of the monies that they have each received from HOA members for the use of the community building and from private parties for the use of the community building for private affairs and events . . ."

The third cause of action is asserted against the Golf Club. The HOA seeks a judgment (1) ejecting the Golf Club from the community building and associated outdoor facilities, and (2) for the value of the use and occupancy of the community building and associated outdoor facilities by the Golf Club. Plaintiffs allege that the Golf Club has wrongfully withheld and occupies the entire community building and its associated outdoor facilities, in contravention of the Master Plan and Town Code, which dictate that the HOA was to be the owner of same.

The fourth cause of action for trespass is asserted against the Golf Club based upon its alleged wrongful and intentional entry into the community building and its associated outdoor facilities. The HOA seeks money damages.

The fifth cause of action is asserted against the Golf Club and the HOA seeks [*12]restitution of the amounts HOA members paid as social membership fees to the Golf Club for the use of the "community building" portions of the community building/clubhouse.

The sixth cause of action is asserted against the Golf Club for unjust enrichment/monies had and received by the Golf Club from residents and non-residents for the use of the "community building" portions of the community building/clubhouse for private events. The HOA seeks an accounting, disgorgement of profits, and an award of damages.

In the seventh cause of action, the HOA and Condos I-V seek contribution from GHH and the Golf Club, as owners of real property and appurtenant easements within The Greens, for the common expenses for administration and maintenance of The Greens incurred by the HOA or its members.

In the eighth cause of action, Plaintiffs seek a judgment declaring that GHH and the Golf Club, and their successors in title, are subject to future assessments by the HOA for their fair share of annual common expenses incurred by the HOA or its members.

In the ninth cause of action, the HOA, on behalf of its members, seeks (1) a judgment declaring that ownership of residential units within The Greens does not require social membership in the "Golf Club" or monthly liability to the Golf Club for "social membership fees," and (2) damages consisting of the return of all monies collected by the Golf Club from HOA members as "social membership fees" since obtaining title to the combined community building/clubhouse in 2004.

In the tenth cause of action, pled in the alternative to the ninth cause of action, the HOA, on behalf of its members, seeks (1) a judgment declaring that future mandatory membership fees imposed by the Golf Club, if allowed by law, may not exceed the costs of maintaining the portions of the Golf Club available to the residents, and (2) restitution of the aggregate of membership fees collected by the Golf Club in excess of the costs of maintaining the "community building" portions of the combined community building/clubhouse since 2004.

In the eleventh cause of action, the HOA, on behalf of its members, seeks restitution of the aggregate of membership fees collected by the Golf Club in excess [*13]of the fair value of the services provided by the Golf Club to the residents.

The twelfth cause of action alleges that the Golf Club and GHH violated General Business Law §§ 394-b and 620 et seq. ("Health Club Services Law") and the HOA, on behalf of its members, seeks (1) a judgment declaring that all contracts for health club services between members of the HOA and the Golf Club, and the provisions in the C & R Declaration requiring same, are void ab initio, and (2) treble damages based upon the aggregate amount of all social membership fees collected by the Golf Club since 2004.

In the thirteenth cause of action, Plaintiffs seek a judgment declaring the collection of social membership fees void as unconscionable.

The fourteenth cause of action seeks an injunction prohibiting the Golf Club from allowing the community building areas of the combined buildings, and its associated outdoor recreational facilities, to be utilized by anyone other than HOA members and their guests.

Motions

Motion for Summary Judgment by the Golf Club

In Mot. Seq. 001, the Golf Club moves for summary judgment dismissing the complaint as asserted against it. In an affidavit in support of the motion, Steven Kaplan, a member of a limited liability company which is a member of the Golf Club, states, among other things, that the Golf Club owns and operates the private country club which is adjacent to and serves The Greens. The country club consists of an 18-hole golf course, four tennis courts, an outdoor swimming pool, and a clubhouse facility which contains meeting rooms, locker rooms, an indoor swimming pool, fitness center, card room, library, and offices. Kaplan points out that the Offering Plan disclosed to all prospective purchasers, among other things, that (1) the country club would be a private facility and would not form part of the condominium common areas managed by the HOA, (2) that there were no recreational facilities owned by the HOA, and (3) that all owners in The Greens were required to be social members of the country club and pay mandatory social membership fees to the Golf Club. He also states that upon signing a purchase agreement, each homeowner expressly agreed to be bound by the terms of the Offering Plan. Thus, Kaplan contends that pursuant [*14]to their purchase agreements, the Offering Plans, the declarations, and all related documents, all owners within The Greens became mandatory social members of the country club obligating them to pay monthly social membership dues and entitling them to use all the facilities, except the golf course. According to Kaplan, at or about the time that control of the HOA was turned over to the homeowners in December 2009, the HOA voluntarily removed itself from the offices it had occupied with the clubhouse buildings. Kaplan states that the Golf Club never excluded the HOA from the clubhouse and never told the HOA that it had to leave.

In support of its motion, the Golf Club argues, among other things, that all causes of action in the Verified Complaint as asserted against it should be dismissed based on the documentary evidence, the doctrines of stare decisis, res judicata, and collateral estoppel, lack of standing, statute of limitations, and failure to state cognizable claims. Specifically, the Golf Club argues, among other things, that the first through fourth and fourteenth causes of action are based on the erroneous contention that the Golf Club is required to transfer ownership of the clubhouse, pool and tennis courts to the HOA. The Golf Club states that the Plaintiffs lack standing under Town Law § 268 (2)[FN1]. The Golf Club contends that the Town Code does not and cannot require the HOA to own the clubhouse and ancillary facilities. The Town Code related to The Greens only dictates what uses of the land are permitted, not the identity of the users of the land, nor the owners of the land. The Golf Club argues that zoning ordinances cannot compel land to be owned by a homeowners' association, or any other specified person or entity. The Golf Club also argues that the Town Code does not restrict the use of the clubhouse, swimming pool, and tennis courts to only residents of The Greens. Therefore, the Golf Club asserts that there is no violation of the Town Code in offering golf club membership and its concomitant use of the clubhouse, swimming pool, and tennis courts, to the residents of the surrounding community.

With regard to the fifth, ninth, tenth, eleventh, twelfth and thirteenth causes of action, the Golf Club contends, among other things, that the HOA lacks standing to recover money damages allegedly sustained by its individual members, nor does it satisfy the "associational standing" rules barring associations from seeking individualized money damages on behalf of their members. The Golf Club also [*15]argues that Plaintiffs' claims regarding mandatory social membership fees are barred by stare decisis, res judicata, and collateral estoppel, based on prior court decisions which the Golf Club contends unequivocally upheld the validity of the mandatory social membership fees. Additionally, the Golf Club argues that the Plaintiffs' claims based on the mandatory social membership fees are barred by the express terms of the Offering Plans and purchase agreements entered into by the residents of the Greens. Further, the Golf Club contends that the restrictive covenant mandating the payment of social membership fees and imposing a lien for the non-payment of such fees is enforceable against the Plaintiffs-homeowners as a matter of law because the purchasers took title through a deed expressly subjecting the conveyance to the restrictive covenant, which runs with the land. The Golf Club also argues that the ninth, twelfth, and thirteenth causes of action are barred by the six-year statute of limitations set forth in CPLR 213.

The Golf Club contends, among other things, that the seventh and eighth causes of action, which seek contribution from the Golf Club and GHH for their share of common expenses for administration and maintenance of the common areas of The Greens incurred by the HOA or its members over which the Defendants have an easement, are barred by the terms of the Offering Plans and C & R Declaration, which does not contain any express requirement that the Golf Club pay such charges. It is also argued that Plaintiffs' claim is barred by the six-year statute of limitations to the extent it seeks recovery for expenses incurred prior to July 2005.

Finally, the Golf Club contends that the sixth cause of action for monies had and received fails to state a cause of action because the monies received by the Golf Club from its operation of the bar and restaurant in the clubhouse and from private parties and events held there, never belonged to the HOA. Because the HOA does not have an interest in such monies, it is not entitled to an accounting. It is also argued that this claim is barred by the six-year statute of limitations.

Motion for Summary Judgment by GHH

In Mot. Seq. 002, GHH makes a separate motion for summary judgment dismissing the complaint as asserted against it. In support of its motion, GHH essentially advances the same arguments made by the Golf Club, including that under the terms of the recorded declarations, GHH is not obligated to pay any sums to the HOA for use of the roads within The Greens over which it has an easement.

[*16]Cross-Motion for Partial Summary Judgment by Plaintiffs

Plaintiffs oppose the Defendants' motions for summary judgment and cross-move (Mot. Seq. 003) for partial summary judgment on Plaintiffs' first, seventh, eighth, ninth, eleventh, twelfth, and thirteenth causes of action.

In opposition to Defendants' motions and in support of their cross-motion, Plaintiffs submit, among other things, an affidavit of Joel Weisenfeld, Vice President of the HOA. Mr. Weisenfeld states, among other things, that he and the other individual plaintiffs are all residents of The Greens, taxpayers of the Town of Huntington, and officers of the HOA. Additionally, he contends that because the Defendants have full access to and use of the common areas of The Greens, they should pay their fair share of common expenses associated with the repair and maintenance of the common areas. Specifically, Weisenfeld mentions, among other things, that the Golf Club allows the community building/clubhouse to be rented out by non-residents for private events during which the private streets of The Greens are used for access and parking. Weisenfeld also states that in the fall of 2009, the Golf Club forced the HOA to remove itself and its records from the community building/clubhouse, where it had its offices since 2004, and barred it from further access to the building. Weisenfeld concedes that the purchase agreements, by incorporating the Offering Plans and the C & R Declaration, obligate each home owner to pay a monthly mandatory fee for social membership in the Golf Club. However, he points out that the only description of what home owners receive in exchange for the fee is "complete rights and privileges to fully utilize all of the club house facilities including tennis and swimming" as set forth in the Offering Plans. Although the C & R Declaration recites the obligation to pay the fees, it is silent as to what home owners receive in return. Weisenfeld states that as of 2012, payment of mandatory social membership fees gave home owners access to a 3,852 square foot health club (including lap pool) and locker rooms controlled by the Golf Club located within the community building/clubhouse. He claims there is no relation between what home owners pay in monthly fees and what they receive in exchange and points out that in 2010, the Golf Club collected social membership fees totaling approximately $2,430,240, nearly double what it collected when the building first opened in 2004, without any improvement in the facilities or services provided. Additionally, Weisenfeld states that the Golf Club exercises complete control over access to the facilities and services provided, including the hours when the facilities are open, and he contends that they are inadequate in several ways. Weisenfeld notes [*17]that home owners are denied exclusive use of the community building, despite the express provisions of the Town Code stating that the community building and its associated outdoor recreational facilities are for the exclusive use of residents and their guests. Weisenfeld states that when private catered events are held, the residents are excluded from the entire upstairs of the building, including that car, library, card rooms, and banquet space.

Plaintiffs argue, among other things, that the Defendants have violated the mandatory provisions of the Town Code entitled "R-PUD The Greens at Half Hollow Planned Unit Development District" by using and occupying the community building for their own benefit, renting the facilities to non-residents, excluding residents from utilizing the facilities, and prohibiting the HOA from holding meeting and maintaining offices therein. Plaintiffs contend that Town Code §§ 198-21.2(F)(1)(b) and 198-21.2(C)(5) together provide that the community building and its associated outdoor recreational facilities, including swimming pool and tennis courts, are to be owned by the residents for the exclusive use of the residents and their guests. Plaintiffs argue that any portion of The Greens that was not a "necessary" part of the "Golf Course," and was not a "dwelling," was deemed "common area" under the Town Code and was therefore to be maintained and owned by the HOA.

Additionally, Plaintiffs point out that the language of Town Code § 198-21.2 (R-PUD The Greens at Half Hollow Planned Unit Development District) was enacted by the Town based upon proposed PUD regulations submitted by SBJ as part of its Proposed Master Plan in 1999, and that neither SBJ, the Golf Club nor GHH ever commenced a legal challenge to the provisions of the Town Code at issue. Plaintiffs argue that by willingly and knowingly submitting themselves to the governance and application of Town Code § 198-21.2, the Defendants waived any objection to the validity or applicability of that section of the Town Code and are estopped from challenging it now.

With regard to standing, Plaintiffs contend (1) that specific injury is presumed because the property they own is in close proximity to the premises that is the subject of the alleged zoning violations, (2) that they have suffered specific injury by being deprived of exclusive use of the community building and accessory facilities, (3) that the individual plaintiffs are within the zone of interest protected by the Town Code provisions at issue, (4) that the Town's separate action against the Golf Club and the caterer operating at the premises does not seek the same relief, and (5) even if the [*18]Town's action sought the same relief, because it was commenced after this action, dismissal of this action is not warranted.

Plaintiffs claim that they are entitled to summary judgment declaring that Defendants, as owners of real property within The Greens holding an easement over the common areas, are obligated to pay, past and future, their pro rata share of the costs and expenses incurred in the maintenance and administration of same. Plaintiffs argue that New York law imposes such an obligation on all users of an easement absent an express agreement otherwise, and that there is no such express agreement otherwise in this case. Plaintiffs contend that the neither the C & R Declaration nor the Offering Plans expressly exempt Defendants from sharing in the cost of maintaining and repairing the common areas over which they have easements.

Additionally, Plaintiffs argue, among other things, that the covenant to pay mandatory social membership fees is unenforceable against subsequent purchasers and transferees because it does not run with the land. In any event, Plaintiffs contend that the Golf Club, as a stranger to the individual unit deeds delivered by GHH (Condos I-IV) and Adriatic (Condo V), has no right to enforce the covenant contained in the C & R Declaration which purports to reserve or grant a power in a future owner of the community building/clubhouse to assess mandatory fees and file liens/foreclose in the event of non-payment. It is also argued that because the causes of action regarding the mandatory social membership fees relate to more than one unit, RPL § 339-dd confers standing on the five Condominium Boards, each of which is a plaintiff in this action, to sue for damages. The individual plaintiffs also claim they have standing to assert their own damage claims regarding the payment of social membership fees paid by them. Plaintiffs contend that the HOA has organizational standing because its members have standing to sue, the Golf Club collects fees for the provision of facilities that the HOA claims belong to it, and the individual participation of each HOA member is not necessary as the monthly fee charged to each member is identical.

Plaintiffs also argue that their claims related to the mandatory payment of social membership dues to the Golf Club are not barred by stare decisis, res judicata and/or collateral estoppel because they were not parties to Country Pointe at Dix Hills Home Owners Ass'n., Inc v Beechwood Org. nor have Defendants demonstrated privity between Plaintiffs and Country Pointe Home Owners Association. Plaintiffs also claim they are not in privity with the plaintiff in Mincone v Greens Golf Club, [*19]LLC, an action commenced by the owners of a single unit within The Greens. Additionally, Plaintiffs argue that the claims they assert in this action, except possibly their claim under the Health Club Services Law, were not raised or decided in the Country Pointe or Mincone actions.

The Defendants oppose the Plaintiffs cross-motion for partial summary judgment. In an affidavit in opposition to Plaintiffs' cross-motion, Kaplan states, among other things, that there is not a single document that ever promised, stated, agreed, or represented that the HOA would own a community building. He argues that Plaintiffs confuse "use" with "ownership". Kaplan states that the Town Code permits, but does not mandate, various uses of buildings or premises in the R-PUD Zoning District, and that the community building and its associated facilities are for the use of the residents of the R-PUD and their guests. Kaplan claims that the single clubhouse ultimately constructed with Town approval "incorporated and included all the uses permitted by the R-PUD Ordinance." With regard to Plaintiffs' claim for payment of common charges, Kaplan contends that the Offering Plans and the C & R Declaration contain an express agreement which only requires "each Home Owner . . . to pay to the Association such Common Expenses . . ." Significantly, the Golf Club states that it is not contesting the applicability of the Town Code and has never argued that it is invalid. Rather, the Golf Club argues that the Town Code should be enforced as written.

Discussion

A party moving for summary judgment has the burden of making a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence demonstrating the absence of any material issues of fact (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 85 [1985]; Zuckerman v. City of New York, 49 NY2d 557 [1980]). Once a prima facie showing has been made by the movant, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish material issues of fact which require a trial (see, Zayas v. Half Hollow Hills Cent. School Dist., 226 AD2d 713 [2nd Dept. 1996]).

Town Code Claims

Inasmuch as the Plaintiffs concede that the HOA does not have standing to [*20]enforce zoning law violations under Town Law § 268(2), summary judgment is granted to the Defendants dismissing the first cause of action insofar as asserted by the HOA. However, it is clear that the individual plaintiffs do have standing to maintain the first cause of action. Town Law § 268(2) provides, in relevant part:

"[U]pon the failure or refusal of the proper local officer, board or body of the Town to institute and such appropriate action or proceeding for a period of ten days after a written request by a resident taxpayer of the town to so proceed, any three taxpayers of the Town . . . may institute such appropriate action or proceeding in like manner as such local officer, board or body of the Town is authorized to do . . ." (emphasis supplied).

Defendants offer no evidence demonstrating that the individual plaintiffs do not constitute "any three taxpayers of the Town." Contrary to the Defendants' contention, there is no requirement under Town Law § 268(2), which Defendants utilize to argue that the individual Plaintiffs lack standing, to plead and prove special damages. Moreover, the action commenced by the Town under Index No. 11-25951 does not seek the same relief as the relief sought in the first cause of action and, therefore, the Town's commencement of that action, although related, does not preclude the first cause of action.

Here, the parties dispute whether the Town Code provisions at issue require the community building and its associated outdoor recreational facilities to be owned by the HOA. While there is no such express provision in the Town Code, the Court agrees with the Plaintiff that under the Town Code, the community building and its associated outdoor recreational facilities are common areas to be owned and maintained by the HOA. Town Code § 198-21.2(C) mandates that the HOA shall own and maintain all common areas within the R-RUD, and states that common areas include roads, drainage structures and community open space. However, that section does not limit common areas to roads, drainage structures and community open space. Thus, although § 198-21.2(C)(4) specifically excludes community buildings, clubhouses and accessory structures for purposes of calculating the amount of community open space, this does not mean, a fortiori, that the community building and its associated outdoor recreational facilities are not common areas.

The term "common areas" is not defined in the R-PUD ordinance. However, Town Code § 198-21.2(F)(1) only permits three uses of a building or premises [*21]located with the SRC Subdistrict; (a) dwellings, ownership of which may be in the form of condominiums or cooperatives, or they may be rentals in the discretion of the HOA; (b) community building and associated outdoor recreational facilities for the exclusive use of residents of the entire R-PUD and their guests; and (3) private golf course, including driving ranges, maintenance buildings, clubhouse and other accessory facilities necessary to operate and maintain a golf course. Thus, as correctly argued by the Plaintiffs, if a building or premises is not used for the purposes of a dwelling or golf course, it must be common area, which shall be owned and maintained by the HOA. This conclusion is also supported by the subdivision map filed March 20, 2002, which designates the location of the "future community recreation facility" as "common area".

By subsequently permitting GHH to build a single building combining the community building use and golf course use, the Town did not, in effect, merge the community building use into the golf course use thereby changing the community building from common area to part of the privately owned golf course. In fact, at the Town's insistence, GHH submitted an Area Plan dated June 6, 2003, which specifically delineated the entire second floor and a substantial portion of the first floor of the community building as "Community Building Area". The subsequently issued building permit and certificate of occupancy both describe the building as "Community Building" with "golf course accessory facilities" as set forth on the Area Plan. This demonstrates that the Town insisted that the community building use and the golf course use be separate and distinct. The Town Code provisions at issue do not provide for the private ownership and operation of the community building and its associated outdoor recreational facilities. Thus, the Court finds that Town Code § 198-21.2 requires the community building and its associated outdoor recreational facilities to be owned by the HOA.

This Court acknowledges that the Court of Appeals recently reaffirmed that "zoning power is not a general police power, but a power to regulate land use" and " that a zoning board is charged with the regulation of land use and not with the person who owns or occupies it'" (Sunrise Check Cashing v Town of Hempstead, 20 NY3d 481, 485 [2013], quoting Matter of Dexter v Town Bd. of Town of Gates, 36 NY2d 102, 105 [1975]; see BLF Assocs., LLC v Town of Hempstead, 59 AD3d 51, 55 [2d Dept 2008][provision of zoning ordinance requiring recreational facility to be owned by homeowners' association are ultra vires and void]). However, under the circumstances of this case, the Defendants waived any argument that the provisions [*22]of the R-PUD zoning ordinance requiring the community building to be owned by the HOA are ultra vires and void. In 1999, SBJ submitted proposed zoning regulations together with their Proposed Master Plan. These proposed regulations included, among other things, a provision calling for "[o]pen space not dedicated to the Town shall be owned and maintained by a home owner's association . . ." This demonstrates that the Defendants' contemplated, and actually proposed, language to be included in the ordinance mandating that the HOA own certain property within the R-PUD. The regulations proposed by SBJ also included a provision permitting outdoor recreational facilities "for the exclusive use of residents of the entire R-PUD and their guests." This demonstrates that the Defendants' contemplated, and actually proposed, that the zoning ordinance would require that certain facilities would be for the exclusive use of residents and their guests. A comparison of the regulations proposed by SBJ and the R-PUD ordinance as enacted reveals that much of the language proposed by SBJ was adopted verbatim into the R-PUD ordinance. It is clear that the property at issue was developed subject to the zoning restrictions which Defendants' predecessor, SBJ, actively participated in proposing to the Town. Moreover, the Defendants' never commenced any action or proceeding challenging the provisions of Town Code § 198-21.2 after it was enacted. Under such circumstances, the Defendants will not now be heard to claim that certain provisions of Town Code § 198-21.2 are ultra vires and void. Rather, in accordance with the Defendants' expressed desire, the Town Code will be enforced as written.

Defendants' reliance on BLF Assocs., LLC v Town of Hempstead (supra) is misplaced. Here, unlike the plaintiff in BLF Assocs., LLC, SBJ was more than just aware of the provisions of the zoning ordinance applicable to the property at issue. Rather, as discussed above, SBJ effectively consented to the provisions of the R-PUD ordinance by proposing regulations with substantially similar language and by failing to challenge any of the provisions after enactment.

Based upon the foregoing, those branches of Defendants' separate motions for summary judgment seeking dismissal of the first cause of action insofar as asserted by the individual plaintiffs are denied, and that branch of Plaintiffs' cross-motion which seeks summary judgment on the first cause of action is granted to the extent that plaintiffs Marvin Richman, Joel Weisenfeld, Howard Schulman, and Sheila Pariser are granted partial summary judgment on the first cause of action to the extent set forth below. [*23]

As recognized by the Plaintiffs, the relief to be awarded on the first cause of action is complicated by the fact that the community building and the golf course clubhouse were combined into a single building, ownership of which is maintained by the Golf Club. What is clear is that Plaintiffs are entitled to an injunction prohibiting the Golf Club from allowing the community building portions of the combined building, as represented on the Floor Area Plans dated June 3, 2003, and its associated outdoor recreational facilities, including swimming pool and tennis courts, to be used by anyone other than the residents of the entire R-PUD and their guests, and same is hereby granted. However, the Plaintiffs have also asked the Court to "direct defendants to extract the plaintiffs' community building use (with associated swimming pool, tennis courts and parking facilities) out of their private golf course, and return same to their common area' status . . ." Plaintiffs suggest that the Golf Club should be required to convey title to the combined building, together with the tennis courts, swimming pool and associated parking facilities, to the HOA, subject to a clause providing a license to the Golf Club to use and occupy those portions of the premises designated for "Golf Course" use as defined in the R-PUD ordinance, with a reasonable access easement through the building and upon the property, conditioned upon the Golf Club's payment of its pro rata share of expenses for the operation and maintenance of common areas (e.g. utilities, insurance, taxes). Another possible approach would be for the Court to grant a mandatory injunction prohibiting the Golf Club from allowing the community building portions of the combined building, as represented on the Floor Area Plans dated June 3, 2003, and its associated outdoor recreational facilities, including swimming pool and tennis courts, to be used by anyone other than the residents of the entire R-PUD and their guests, conditioned upon payment by the HOA of its pro rata share of the reasonable expenses incurred by the Golf Club for operation and maintenance of the community building portions of the combined building, as represented on the Floor Area Plans dated June 3, 2003, and its associated outdoor recreational facilities, including swimming pool and tennis courts. Given the complex issues involved, the appropriate additional relief to be granted on the first cause of action is not a proper matter for summary judgment and is referred to trial, at which time the Court will hear evidence as to future ownership of the combined building and an appropriate manner for the parties to equitably share future expenses incurred in connection therewith.

In light of the foregoing, the second cause of action (imposition of constructive trust), third cause of action (ejectment) and fourth cause of action (trespass) are [*24]dismissed as academic, as conceded by Plaintiff's Memorandum of Law (p.58).[FN2] The fourteenth cause of action, which seeks "an injunction prohibiting [the Golf Club] from allowing the community building areas of the combined building, and its associated outdoor recreational facilities, including swimming pools and tennis courts, to be utilized by anyone other than HOA members and their guests" is also dismissed as academic as such relief is subsumed within the relief granted on the first cause of action.

Those branches of Defendants' motion seeking summary judgment dismissing the fifth and sixth causes of action, both of which seek monetary damages allegedly caused by the Defendants' violation of the Town Code, are denied. Contrary to the Defendants' contention, the HOA has standing to assert claims for money damages on behalf of the individual homeowners. RPL § 339-dd provides, in relevant part:

Actions may be brought or proceedings instituted by the board of managers in its discretion, on behalf of two or more of the unit owners . . . with respect to any cause of action relating to the common elements or more than one unit.

Here, the Offering Plans state that the HOA was established to own, operate, manage and control the common areas of the various condominiums, and to perform various services such as snow removal, landscaping, and road maintenance. The Offering Plans note that such services are usually performed by the Board of Managers of the individual condominium regimes, they will be provided by the HOA "to insure uniformity of services and to avoid a duplication of services with the resultant economic savings." This demonstrates that it was envisioned that the HOA would essentially function as an overall board of managers in certain respects for the individual condominium regimes. Moreover, pursuant to the R-PUD zoning ordinance, the HOA was to own and maintain all common areas. Because the HOA has exclusive authority to manage the common areas, the Condominium Act authorizes it to sue for any injury thereto (see Caprer v Nussbaum, 36 AD3d 176, 184 [2d Dept 2006]). The Plaintiffs' claims regarding payment of fees to the Golf Club for use of the "community building" portions of the combined building relate to the common elements and more than one unit. The HOA claims that its members should [*25]not have to pay fees to utilize the community building and its associated outdoor recreational facilities because the HOA is entitled to ownership, as common areas, and exclusive use of same pursuant to the R-PUD ordinance. Thus, RPL § 339-dd confers standing on the HOA. Additionally, in Hamlet on Olde Oyster Bay Home Owners Assoc., Inc. v Holiday Organization, Inc. (65 AD3d 1284, 1288 [2d Dept 2009]), the Appellate Division, Second Department held, among other things, that the plaintiffs in that case, including a condominium home owners association, could seek damages for breach of contract, as well as for breach of a limited warranty.

Contrary to the Defendants' contention, there is no express contract governing the payment to the Golf Club by residents of The Greens for the use of the community building portions of the combined building. To the contrary, as discussed above, the R-PUD ordinance calls for all common areas with the R-PUD to be owned and maintained by the HOA. Although, the Plaintiffs characterize the amounts paid by residents of The Greens for the use of the "community building" portions of the combined building as social membership fees, damages recoverable in the fifth cause of action include any amounts paid by Plaintiffs to the Golf Club for the use of the community building. The "community building use" and the "golf course use" permitted under Town Code § 198-21.2(F)(1) are separate and distinct. Thus, the mandatory social membership fees collected by the Golf Club should only have been used in furtherance of "golf course use" and not "community building use."

However, with regard to the fifth and sixth causes of action, the applicable six year statute of limitations bars recovery of damages sustained prior to July 27, 2005. The amount of such damages, if any, shall be determined at trial of this action.

Claims for Contribution for Common Expenses

In the seventh cause of action, the HOA and Condos I-V seek payment from the Defendants for their pro rata share of expenses incurred by the HOA for the administration and maintenance of the common areas over which Defendants have an easement. In the eighth cause of action Plaintiffs seeks a judgment declaring that the Defendants and their successors in title, are subject to future assessments by the HOA for their pro rata share of the foregoing common expenses.

The Defendants have made a prima facie showing of entitlement to judgment as a matter of law dismissing the seventh and eighth causes of action. Although it is [*26]clear that Plaintiffs do not seek contribution pursuant to CPLR 1401, the Defendants have demonstrated that these causes of action are barred by the express terms of the C & R Declaration and Declaration of Condominium, which provide that common expenses are to be assessed to the home owners apportioned in accordance with their percentage interest in the common elements. It is undisputed that Defendants are not home owners within The Greens. Contrary to the Plaintiffs' contention, the Court finds that such language constitutes an express agreement deviating from the general rule obligating users of an easement to share ratably in the cost of the maintenance and repair of the easement (see, Green Harbour Homeowners' Assn. v G.H. Dev. and Constr., Inc., 307 AD2d 465 [3d Dept 2003]). Moreover, by failing to identify any other persons or entities, the language of the C & R Declaration and Condominium Declaration clearly advised potential purchasers that only home owners within The Greens would be obligated to pay common expenses.

The Plaintiffs reliance on cases addressing payment of common expenses pursuant to an "implied-in-fact" contract is misplaced. Here, it is the express provisions of the C & R Declaration and Declaration of Condominium that govern the obligation to pay common expenses. "A contract cannot be implied in fact where there is an express contract covering the subject matter involved" (Julian J. Studley, Inc. v New York News, Inc., 70 NY2d 628, 629 [1987]). The Court declines to consider Plaintiffs' argument that the Golf Club does not have a valid written easement over the common areas of The Greens pursuant to the C & R Declaration because it lacks privity of contract, as this argument is raised for the first time in reply (see Stock v Morizzo, 92 AD3d 672 [2d Dept 2012]). Accordingly, those branches of Defendants' motions seeking summary judgment dismissing the seventh and eighth causes of action are granted, and that branch of Plaintiffs' motion which seeks summary judgment on the seventh and eighth causes of action is denied.

Social Membership Fee Claims

"Stare decisis et non quieta movere" is a Latin phrase that means "[t]o stand by things decided, and not to disturb settled points" (Black's Law Dictionary 1443 [8th ed. 2004]). The doctrine of stare decisis requires trial courts in the Second Department to follow precedents set by the Appellate Division of another department until the Court of Appeals or the Second Department pronounces a contrary rule (Mountain View Coach Lines, Inc. v Storms, 102 AD2d 663, 664 [2d Dept 1984]). [*27]

As explained by the Court of Appeals in Parker v Blauvelt Volunteer Fire Co. (93 NY2d 343, 347-349 [1999]):

Under res judicata, or claim preclusion, a valid final judgment bars future actions between the same parties on the same cause of action (Matter of Reilly v Reid, 45 NY2d 24, 27; see also, Schuylkill Fuel Corp. v B. & C. Nieberg Realty Corp., 250 NY 304, 306-307 [Cardozo, Ch. J.]). As a general rule, "once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy" (O'Brien v City of Syracuse, 54 NY2d 353, 357; Matter of Reilly v Reid, supra, at 30).

***

Collateral estoppel, or issue preclusion, "precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party . . ., whether or not the tribunals or causes of action are the same" (Ryan v New York Tel. Co., 62 NY2d 494, 500; see also, Burgos v Hopkins, supra, 14 F3d, at 792). The doctrine applies if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the plaintiff had a full and fair opportunity to litigate the issue in the earlier action (Ryan v New York Tel Co., supra, at 500-501). "[T]he burden rests upon the proponent of collateral estoppel to demonstrate the identicality and decisiveness of the issue, while the burden rests upon the opponent to establish the absence of a full and fair opportunity to litigate the issue in [the] prior action or proceeding" (id. at 501).

In Green v Santa Fe Indus., Inc. (70 NY2d 244, 253 [1987]), the Court of Appeals stated:

It is fundamental that a judgment in a prior action is binding not only on the parties to that action, but on those in privity with them (see, Commissioners of State Ins. Fund v Low, 3 NY2d 590, 595; Matter of Shea, 309 NY 605, 616; 5 Weinstein-Korn-Miller, NY Civ Prac ¶ 5011.32, at 50-192). Generally, to establish privity the connection between the parties must be such that the interests of the nonparty can be said to have been represented in the prior proceeding (see, Israel v Wood Dolson Co., 1 NY2d 116, 118-120; Restatement [Second] of Judgments §§ 41, 42; Weinstein-[*28]Korn-Miller, NY Civ Prac ¶ 5011.32).

As the First Department noted in All Terrain Props. v Hoy (265 AD2d 87, 93 [1st Dept 2000]):

Privity has been described as "an amorphous term not susceptible to ease of application" (Gramatan Home Investors Corp. v Lopez, 46 NY2d 481, 486). The doctrine extends to "persons who were not parties to the previous action but who were connected with it to such an extent that they are treated as if they were parties" (supra, at 486). "What is controlling is the identity of the issue which has necessarily been decided in the prior action of proceeding" (Ryan v New York Tel. Co., 62 NY2d 494, 500).

Here, the Defendants have demonstrated that the Plaintiffs are in privity with the plaintiffs in Mincone v Greens Golf Club, LLC (District Court, Suffolk County, Third District, Index No. HUC 3436-08). The individual plaintiffs in this case, like the plaintiffs in Mincone, are owners of residential units with The Greens subject to the same covenant mandating the payment of social membership fees to the Golf Club. All owners of residential units are members of the HOA. The HOA is suing on behalf of its members. Thus, the Court finds that the interests of the owners of residential units within The Greens were represented in the Mincone action (see e.g. Weisz v Levitt, 59 AD2d 1002 [3d Dept 1977][union member barred from maintaining action where his interests were adequately protected in first action by union]; Buechel v Bain, 275 AD2d 65 [1st Dept 2000][privity extends to partners comprising law firm that is party to subject contract]). The Plaintiffs herein have not demonstrated the absence of a full and fair opportunity to litigate the issues in the Mincone action.

Additionally, the issues raised by the Plaintiffs in the ninth, tenth, eleventh and thirteenth causes of action in this case were raised and decided in Mincone. The Mincones sued the Golf Club for breach of contract, breach of implied contract, unjust enrichment, and fraud based upon their claim that they had wrongfully been compelled to pay social membership fees to the Golf Club even though they were not participating members of the Golf Club, had no voting rights at the Golf Club, and did not use the Golf Club's facilities. The Mincones alleged, among other things, that the Golf Club had been unjustly enriched by the Mincones' payment of mandatory social membership fees pursuant to the covenant in the Declaration of Covenants, and that it would be unconscionable for the Golf Club to retain their payments. The [*29]Mincones sought restitution of the amounts they paid to the Golf Club in mandatory social membership fees since they purchased their unit. The trial court, among other things, granted the Golf Club summary judgment dismissing the Mincones' unjust enrichment claim. No appeal was taken from the order dismissing the unjust enrichment cause of action. This Court notes that in opposition to the Golf Club's motion for summary judgment and in support of their motion for summary judgment, the Mincones specifically argued, among other things, that the covenant regarding the mandatory payment of social membership fees is not enforceable as it is not a covenant running with the land. In fact, the Mincones cited Neponsit Prop. Owners' Ass'n. (278 NY 248 [1938]), the case on which Plaintiffs urge this court to rely in finding that the covenant at issue does not run with the land. Here, as in Mincone, the ninth cause of action alleges that the covenant at issue does not run with the land and that there is no privity of contract between the residents of The Greens. Thus, the Court is constrained by the above doctrines from reconsidering this issue raised by parties in privity with Plaintiffs herein. The tenth and eleventh causes of action are for unjust enrichment in connection with payment of mandatory social membership fees by residents of The Greens. The thirteenth cause of action seeks a declaration that the covenant mandating the payment of social membership is void as unconscionable. Because the issues raised in these causes of action are identical to the issues raised by plaintiffs in the Mincone action, with whom the Plaintiffs are in privity, collateral estoppel precludes the relitigation of these issues and the Defendants are granted summary judgment dismissing the ninth, tenth, eleventh and thirteenth causes of action.

Finally, the Defendants are granted summary judgment dismissing the twelfth cause of action. Neither General Business Law § 394-b nor General Business Law § 620 et seq. are applicable to the facts of this case. Contrary to the Plaintiffs' contention, the covenant at issue is not a "contract for instruction in physical or social skills, or for the use by an individual of a dance hall studio, ballroom, or other physical or social training facility . . . or the use of such physical or social training facilities" (GBL § 394-b), or a "contract for services" within the meaning of the Health Club Services Law (GBL § 620 et seq.).

Summary

Accordingly, based upon the foregoing, the Court grants the following relief: [*30]

1.Partial summary judgment to Plaintiffs Marvin Richman, Joel Weisenfeld, Howard Schulman, and Sheila Pariser on the first cause of action to the extent that a mandatory injunction is granted prohibiting the Golf Club from allowing the community building portions of the combined building, as represented on the Floor Area Plans dated June 3, 2003, and its associated outdoor recreational facilities, including swimming pool and tennis courts, to be used by anyone other than the residents of the entire R-PUD and their guests;

2.Summary judgment dismissing the first cause of action as asserted by the HOA;

3.Summary judgment dismissing the second, third, fourth, and fourteenth causes of action as academic;

4.Summary judgment dismissing the seventh, eighth, ninth, tenth, eleventh, twelfth, and thirteenth causes of action.

All other relief requested is denied.

Thus, the only issues which remain for trial are: (1) the appropriate additional relief to be granted on the first cause of action including possible conveyance of title to the combined building to the HOA and an appropriate manner for the parties to equitably share future expenses incurred in connection therewith, and (2) damages, if any, recoverable on the fifth and sixth causes of action.

This constitutes the DECISION and ORDER of the Court. Dated: June 5, 2013 Riverhead, New York

EMILY PINESJ. S. C. Footnotes

Footnote 1: Plaintiffs concede that the HOA itself does not have standing to enforce zoning law violations under Town Law § 268 (2).

Footnote 2: A careful review of Plaintiff's complaint reveals that the damages sought in the Second and Third Causes of Action are essentially contained and sought within the Fifth and Sixth Causes of Action.