Board of Directors of Blue Ridge Homeowners Ass'n v. Steinkamp

183 A.D.2d 800, 584 N.Y.S.2d 113, 1992 N.Y. App. Div. LEXIS 7183

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 18, 1992
• Status: Published

Opinion

— In an action, inter alia, for injunctive relief, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Doyle, J.), entered May 4, 1990, which denied its motion for summary judgment.

Ordered that the order is affirmed, with costs.

In this action, the plaintiff seeks an order directing the defendant to dismantle a patio outside his condominium unit, contending that the defendant never obtained the requisite approval for its construction. However, the defendant contends that in 1983, he requested such approval and, having received no response to his request within 60 days, he automatically became entitled to construct the patio pursuant to the by-laws of the plaintiff. Upon reviewing the record, we agree with the Supreme Court’s conclusion that an issue of fact exists with respect to whether the defendant’s 1983 request was submitted to the proper entity. Inasmuch as summary judgment is available only in those cases where it clearly appears that no material triable issues of fact exist (see, Daliendo v Johnson, 147 AD2d 312), an award of summary judgment herein would be inappropriate. Additionally, we agree with the Supreme Court’s determination that the defendant is not precluded from relying upon the 60-day provision in the by-laws by reason of any alleged lack of specificity in his 1983 request. Sullivan, J. P., Harwood, Ritter and Copertino, JJ., concur.