Board of Managers v. Caballero

Appellate Division of the Supreme Court of New York

Board of Managers v. Caballero

118 A.D.3d 630, 988 N.Y.S.2d 476

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 26, 2014

StatusPublished

This text of 118 A.D.3d 630 (Board of Managers v. Caballero) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Board of Managers v. Caballero, 118 A.D.3d 630, 988 N.Y.S.2d 476 (N.Y. Ct. App. 2014).

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Opinion

Orders, Supreme Court, New York County (Marcy S. Friedman, J.), entered July 24, 2012 and July 25, 2012, which, to the extent appealed from as limited by the briefs, denied plaintiffs motion for summary judgment to foreclose on its lien for unpaid common charges on defendants’ condominium apartments and to strike defendants’ affirmative defenses and counterclaims, unanimously affirmed, without costs.

The court properly determined that issues of fact remained as to whether plaintiff (the board) acted within the scope of its authority when it imposed various assessments without unit owner approval (see generally Matter of Levandusky v One Fifth Ave. Apt. Corp., 75 NY2d 530 [1990]). On its summary judgment motion, the board failed to meet its burden to demonstrate, inter alia, that the assessments were related to building repairs, for which unit owner approval is not required, as opposed to items such as building alterations, additions, or improvements, which do require unit owner approval under certain circumstances pursuant to bylaws §§ 2.5, 5.3 (cf. Helmer v Comito, 61 AD3d 635 [2d Dept 2009]).

We have considered the board’s remaining arguments and find them unavailing.

Concur—Moskowitz, J.E, Richter, Manzanet-Daniels, Clark and Kapnick, JJ.

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Orders, Supreme Court, New York County (Marcy S. Friedman, J.), entered July 24, 2012 and July 25, 2012, which, to the extent appealed from as limited by the briefs, denied plaintiffs motion for summary judgment to foreclose on its lien for unpaid common charges on defendants’ condominium apartments and to strike defendants’ affirmative defenses and counterclaims, unanimously affirmed, without costs.

The court properly determined that issues of fact remained as to whether plaintiff (the board) acted within the scope of its authority when it imposed various assessments without unit owner approval (see generally Matter of Levandusky v One Fifth Ave. Apt. Corp., 75 NY2d 530 [1990]). On its summary judgment motion, the board failed to meet its burden to demonstrate, inter alia, that the assessments were related to building repairs, for which unit owner approval is not required, as opposed to items such as building alterations, additions, or improvements, which do require unit owner approval under certain circumstances pursuant to bylaws §§ 2.5, 5.3 (cf. Helmer v Comito, 61 AD3d 635 [2d Dept 2009]).

We have considered the board’s remaining arguments and find them unavailing.

Concur—Moskowitz, J.E, Richter, Manzanet-Daniels, Clark and Kapnick, JJ.

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Bluebook (online)

118 A.D.3d 630, 988 N.Y.S.2d 476, Counsel Stack Legal Research, https://law.counselstack.com/opinion/board-of-managers-v-caballero-nyappdiv-2014.

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