Residential Board of Managers v. Berman

213 A.D.2d 206, 633 N.Y.S.2d 478

Opinion

—Order, Supreme Court, New York County (William McCooe, J.), entered January 3, 1994, which denied plaintiffs motion for summary judgment foreclosure of a condominium unit owned by defendants Eugene Berman and Miriam Berman, and order of the same court and Justice, entered April 4, 1994, denying, inter alia, plaintiffs motion for renewal, unanimously affirmed, with costs.

The Supreme Court properly determined that the decision in Frisch v Bellmarc Mgt. (190 AD2d 383, 389) wherein this Court stated that "[a]n individual unit owner * * * cannot withhold payment of common charges and assessments in derogation of the bylaws of the condominium based on defective conditions in his unit or in the common areas” since plaintiffs claims "cannot be based on a breach of the statutory warranty of habitability”, does not mean that a unit owner is precluded from interposing any defenses at all to an action for foreclosure even v/here, as in the instant situation, there is no claim that such owner is in derogation of any of the condominium’s bylaws. The record indicates that it is plaintiff, not the unit owner, who is in violation of the obligations imposed by the bylaws. Therefore, Frisch v Bellmarc Mgt. is distinguishable from the matter herein. Concur—Ellerin, J. P., Rubin, Ross, Nardelli and Tom, JJ.