Shore Park Estates Homeowners Ass'n v. Seibert

277 A.D.2d 304, 715 N.Y.S.2d 878, 2000 N.Y. App. Div. LEXIS 11778

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 13, 2000
• Status: Published

Opinion

—In an action, inter alia, to foreclose a lien on certain real property for unpaid common charges, the defendants James A. Seibert and Barbara J. Seibert appeal, as limited by their brief, from stated portions of an order of the Supreme Court, Suffolk County (Catterson, J.), dated August 23, 1999, which, inter alia, granted that branch of the plaintiff’s motion which was for summary judgment on the complaint insofar as asserted against them. .

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

The Supreme Court properly granted that branch of the plaintiffs motion which was for summary judgment on the complaint insofar as asserted against the appellants. In support of its motion, the plaintiff sustained its initial burden by submitting proof of the lien and demonstrating the appellants’ failure to pay the common charges (see, Rivermist Assn. v Davis, 251 AD2d 1039; Mahopac Natl. Bank v Baisley, 244 AD2d 466, 467; Metropolitan Distrib. Servs. v DiLascio, 176 AD2d 312). It was then incumbent upon the appellants to assert any defenses raising a question of fact as to their default on the common charges (see, Marton Assocs. v Vitale, 172 AD2d 501, 502). The appellants’ assertion that they ceased making payments due to the plaintiffs failure to increase the size" of their boat slip was insufficient to defeat the motion (see, Rivermist Assn. v Davis, supra; Board of Mgrs. v Baker, 244 AD2d 229; cf., Residential Bd. of Mgrs. v Berman, 213 AD2d 206).

The appellants’ remaining contentions are without merit. Santucci, J. P., Sullivan, Friedmann and Smith, JJ., concur.