Koatz v. 1776 Second Avenue Associates

244 A.D.2d 201, 664 N.Y.S.2d 32, 1997 N.Y. App. Div. LEXIS 11401

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 13, 1997
• Status: Published

Opinion

—Order, Supreme Court, New York County (Alice Schlesinger, J.), entered April 16, 1997, which denied defendants’ motion pursuant to CPLR 3211 (a) (5) to dismiss plaintiffs’ complaint, unanimously affirmed, with costs.

The court properly found that collateral estoppel was inapplicable since, unlike the earlier lawsuit brought by the condominium association for the alleged defective construction of a residential condominium complex, in which it sought repairs to the inside of the units affected and the outside facade of the building, plaintiffs in the present action seek to recover for the damage that their individual unit suffered as result of the building’s defects (see, Ryan v New York Tel. Co., 62 NY2d 494). Although plaintiffs were members of the condominium association that entered into a settlement agreement with defendants in the prior action with respect to repairs of the construction defects, this did not preclude the instant action. The settlement did not dispose of condominium owners’ individual property damage claims, and, in any event, the association lacked authority to settle such individual claims (see, Real Property Law § 339-dd). We have considered defendants’ remaining contentions and find them to be without merit. Concur—Rosenberger, J. P., Nardelli, Andrias and Colabella, JJ.