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Port Village Hoa, Inc v. Summit Associates

August 5, 2011

PORT VILLAGE HOA, INC.,
APPELLANT,
v.
SUMMIT ASSOCIATES, HENRY ORTIZ AND VICTORIA HICKSON,
RESPONDENTS.



Appeal from a "Decision/Judgment" of the Civil Court of the City of New York, Richmond County (Philip S. Straniere, J.), dated April 21, 2010, deemed, in part, from a judgment of the same court entered May 3, 2010 (see CPLR 5512 [a]).

Port Vil. HOA, Inc. v Summit Assoc.

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Miscellaneous Reports.

Decided on August 5, 2011

PRESENT: PESCE, P.J., GOLIA and STEINHARDT, JJ

The "Decision/Judgment," after a non-jury trial, denied plaintiff's motion to amend the caption to change the name of the plaintiff from Port Village HOA, Inc. to Port Village Association, Inc., dismissed the action, and, sua sponte, directed the clerk of the Civil Court of the City of New York, Richmond County to vacate any and all judgments entered in favor of Port Village Homeowners' Association, Inc. or Port Village HOA, Inc. and to simultaneously dismiss any and all of those actions, as well as any actions brought by either of these entities pending before the same court; directed the County Clerk for the County of Richmond to vacate any judgments or liens docketed in favor of Port Village Homeowners' Association, Inc. or Port Village HOA, Inc.; and directed nonparty T. W. Finnerty Property Management, Inc. to close any and all bank accounts it maintains on behalf of plaintiff, however denominated, or on behalf of any other homeowners' association or condominium, in any bank located outside of New York State and to reopen such accounts in banks subject to New York State's jurisdiction. The judgment, entered pursuant to the "Decision/Judgment," dismissed the action.

ORDERED that so much of the appeal as is from the portion of the "Decision/Judgment" that denied plaintiff's motion to amend the caption is dismissed; and it is further,

ORDERED that so much of the appeal as is from the portion of the "Decision/Judgment" that, sua sponte, directed nonparty T. W. Finnerty Property Management, Inc. to close any and all bank accounts it maintains on behalf of any homeowners' association or condominium, other than plaintiff, in any bank located outside of New York State and to reopen such accounts in banks subject to New York State's jurisdiction is dismissed as plaintiff is not aggrieved from that portion of the order (see CPLR 5511); and it is further,

ORDERED that, on the court's own motion, so much of the notice of appeal as is from the portion of the "Decision/Judgment" that, sua sponte, directed the clerk of the Civil Court of the City of New York, Richmond County to vacate any and all judgments entered in favor of Port Village Homeowners' Association, Inc. or Port Village HOA, Inc. and to simultaneously dismiss any and all of those actions, as well as any actions brought by either of these entities pending before the same court; directed the County Clerk for the County of Richmond to vacate any judgments or liens docketed in favor of Port Village Homeowners' Association, Inc. or Port Village HOA, Inc.; and directed nonparty T. W. Finnerty Property Management, Inc. to close any and all bank accounts it maintains on behalf of plaintiff, however denominated, in any bank located outside of New York State and to reopen such accounts in banks subject to New York State's jurisdiction, is treated as an application for leave to appeal from that portion of the "Decision/Judgment," and leave to appeal from that portion of the "Decision/Judgment" is granted (see CCA 1702); and it is further,

ORDERED that so much of the "Decision/Judgment", as sua sponte, directed the clerk of the Civil Court of the City of New York, Richmond County to vacate any and all judgments entered in favor of Port Village Homeowners' Association, Inc. or Port Village HOA, Inc. and to simultaneously dismiss any and all of those actions, as well as any actions brought by either of these entities pending before the same court; directed the County Clerk for the County of Richmond to vacate any judgments or liens docketed in favor of Port Village Homeowners' Association, Inc. or Port Village HOA, Inc.; and directed nonparty T. W. Finnerty Property Management, Inc. to close any and all bank accounts it maintains on behalf of plaintiff, however denominated, in any bank located outside of New York State and to reopen such accounts in banks subject to New York State's jurisdiction, is reversed, without costs, and those provisions of the "Decision/Judgment" are stricken; and it is further,

ORDERED that the judgment is modified by amending the caption to remove "Port Village HOA, Inc." as the plaintiff and by substituting "Port Village Association, Inc." as the plaintiff, by vacating so much of the "Decision/Judgment" as denied plaintiff's motion so to amend the caption and by providing that plaintiff's motion so to amend the caption is granted; as so modified, the judgment is affirmed, without costs.

Plaintiff brought this commercial claims action to recover from a title company and two successor owners for common charges to a unit in a residential development which had not been paid by a prior owner. The action was brought in the name of "Port Village HOA, Inc.," even though, pursuant to the "Declaration of Protective Covenants, Conditions, Restrictions, Easements, Charges and Liens" for the Port Village residential development (the Declaration), the homeowners' association for the Port Village development was incorporated as the "Port Village Association, Inc." (the Association). The Civil Court denied plaintiff's motion, made at the outset of trial and renewed following trial, to amend the caption to reflect the correct name of the homeowners' association, and premised its dismissal of the action, in part, on plaintiff's use of an incorrect name.

The appeal from so much of the "Decision/Judgment" as denied plaintiff's motion to amend the caption must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from that portion of the "Decision/ Judgment" are brought up ...


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