Rivermist Ass'n v. Davis

251 A.D.2d 1039, 673 N.Y.S.2d 958, 1998 N.Y. App. Div. LEXIS 7106

Opinion

—Judgment unanimously affirmed with costs. Memorandum: Supreme Court properly granted plaintiffs motions for summary judgment in these foreclosure actions and ordered the sale of the subject properties. Plaintiff established its entitlement to a judgment of foreclosure by submitting proof in admissible form that defendants were delinquent in their payment of homeowners’ association assessments due on the property by the terms of the association declaration (see, havi v Hamedani, 234 AD2d 428; Chase Lincoln First Bank v Dietrick, 184 AD2d 1032). The defense of defendants that they withheld the assessments due to plaintiffs failure to make necessary repairs to the property is insufficient to defeat the motion (see, Board of Mgrs. of 200 W. 109 Condominium v Baker, 244 AD2d 229; Matter of Abbady [Mailman], 216 AD2d 115, 116).

Contrary to the contention of defendants, their pending counterclaims asserted in a related action involving these properties are not “inextricably interwoven” and “inseparable” from the issues raised herein to preclude summary judgment in these actions (Michaelson Assocs. v Soifer, 182 AD2d 503, 504-505; see also, New York Natl. Bank v Harris, 182 AD2d 680, 680-681). Nor did the court abuse its discretion in refusing to stay entry of the judgments of foreclosure and orders of sale pending resolution of the related action (cf., Michaelson Assocs. v Soifer, supra). (Appeal from Judgment of Supreme Court, Erie County, Gorski, J. — Summary Judgment.) Present — Law-ton, J. P., Hayes, Pigott, Jr., Boehm and Fallon, JJ.