Board of Managers of Madison Medical Building Condominium v. Rama

249 A.D.2d 140, 671 N.Y.S.2d 246, 1998 N.Y. App. Div. LEXIS 4340

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 21, 1998
• Status: Published

Opinion

—Orders, Supreme Court, New York County (Harold Tompkins, J.), entered May 18, 1995 and November 1, 1995, which, inter alia, granted plaintiff’s motion for summary judgment and struck defendants-appellants’ affirmative defenses and counterclaim, and denied defendants-appellants’ cross motion for leave to serve an amended answer, unanimously affirmed, without costs.

It is not disputed that defendants-appellants breached the condominium by-laws by not paying the subject assessments (see, Frisch v Bellmarc Mgt., 190 AD2d 383, 389). The board’s authority to enforce the by-laws is not necessarily compromised by technical defects in its election (see, Caruso v Board of Mgrs. of Murray Hill Terrace Condominium, 146 Misc 2d 405, 408), and considering “the particular circumstances of this case” (Timmerman v Board of Mgrs. of Anchorage Condominium, 212 AD2d 523, 524), including defendants’ implicit recognition of the board’s general authority to act (see, Board of Mgrs. of Gen. Apt. Corp. Condominium v Gans, 72 Misc 2d 726, 728), the motion court properly found that defendants had no defense to plaintiff’s cause of action for breach of their by-law obligation to pay assessments. Because the allegations concerning the election of the board do not constitute a defense to defendants’ obligation under the by-laws to pay the assessment, the proposed counterclaims clearly lack merit (see, e.g., Ponte & Sons v American Fibers Intl., 222 AD2d 271). Concur— Ellerin, J. P., Wallach, Tom and Andrias, JJ.