Gruber v. Gencorelli

187 A.D.2d 560, 590 N.Y.S.2d 220, 1992 N.Y. App. Div. LEXIS 13026

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 16, 1992
• Status: Published

Opinion

In an action to recover damages for alleged defective construction of a condominium unit, the defendant sponsors appeal from so much of an order of the Supreme Court, Nassau County (Wager, J.), dated October 11, 1990, as denied their motion to dismiss the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

As the condominium by-laws and offering plan mandate that the board of managers is responsible for collections and disbursements for the repair and maintenance of the common areas and further that all actions are to be brought by the board of managers on behalf of the individual unit owners, the plaintiff could have initiated his action against the defendant sponsors through the board of managers (see, Real Property. Law art 9-B; Schoninger v Yardarm Beach Homeowners’ Assn., 134 AD2d 1). However, as the plaintiff was a first-time purchaser, pursuant to the terms of the purchase agreement and the offering plan, he was granted the right to proceed directly against the defendant sponsors. We find that the motion of the defendant sponsors to dismiss the complaint for failure to proceed through the board was properly denied. Bracken, J. P., Lawrence, Miller, Copertino and Santucci, JJ., concur.