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Thom Straley/Sea Breeze Ii Condo Association v. Joyce A. Kwiecinski

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS Appellate Term, Second Department


December 16, 2011

THOM STRALEY/SEA BREEZE II CONDO ASSOCIATION,
RESPONDENT,
v.
JOYCE A. KWIECINSKI,
APPELLANT.

Appeal from a judgment of the City Court of Long Beach, Nassau County (Frank D. DiKranis, J.), entered April 23, 2010.

Thom Straley/Sea Breeze Ii Condo Assn. v Kwiecinski

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 16, 2011

PRESENT: TANENBAUM, J.P., NICOLAI and MOLIA, JJ

The judgment, after a non-jury trial, awarded "Thom Straley/Sea Breeze II Condo Association" the principal sum of $3,519.97.

ORDERED that the judgment is modified by providing that the award is in favor of "Thom Straley as President of Sea Breeze II Condo Association," and the clerk of the City Court is directed to correct the judgment accordingly; as so modified, the judgment is affirmed, without costs.

This commercial claims action was brought to recover unpaid monthly maintenance fees, assessment fees and late fees allegedly due to the Sea Breeze II Condo Association (the Association) from defendant, for the period from January 31, 2006 to June 19, 2009. Defendant was a unit owner in the Sea Breeze II condominium. At a non-jury trial, Thom Straley identified himself as the president of the Association. Straley submitted to the court a statement which, he asserted, had been generated by the Association's bookkeeper in the ordinary course of business and set forth the Association's record of all charges made against defendant's condominium and all payments received from defendant from December 31, 2005 through June 19, 2009. The statement included a running balance and a total due. The balance shown to be due to the Association from defendant on the statement Straley produced was $4,724.52, including outstanding common fees of $3,574.62 and late fees of $1,150. As a result, the Association made out a prima facie case against defendant.

Defendant demonstrated at trial that, of the amount sought by the Association, she had made payments to the Association totaling $1,204.55. The City Court credited defendant's payments against the sum claimed, and awarded the Association judgment in the principal sum of $3,519.97.

To the extent that defendant argues on appeal that Straley lacked authority to represent the Association, we note that Straley's testimony provided support for his claim of authority, which was premised on his status as an officer of the Association. Determination of the credibility of his testimony was vested with the trial court (see McGuirk v Mugs Pub, 250 AD2d 824 [1998]; Richard's Home Ctr. & Lbr. v Kraft, 199 AD2d 254 [1993]; Claridge Gardens v Menotti, 160 AD2d 544 [1990]). Since the City Court's determination could have been reached under a fair interpretation of the evidence, we do not disturb the court's implicit finding that Straley had authority to represent the Association at the trial of this commercial claims action.

Defendant contends that the judgment of the City Court should be reversed because the caption, which names Straley as a party, fails to include a description of the capacity in which he is named. Condominiums are generally regarded as unincorporated associations (Brasseur v Speranza, 21 AD3d 297 [2005]). As an officer of the Association, Straley had the right to maintain this commercial claims action on behalf of the Association (see Real Property Law §§ 339-j, 339-dd; General Associations Law § 12; CPLR 1025; see also Community Bd. 7 of Borough of Manhattan v Schaffer, 84 NY2d 148, 155 [1994]). The failure to properly designate the representative capacity of an officer of an association is not a jurisdictional error and can be corrected (see Montalvo v Bakery & Confectionery Workers Intl. Union of Am. Local No. 3, AFL-CIO, 137 AD2d 506 [1988]). Since Straley brought this action solely as an officer of the Association and not in his individual capacity, we modify the judgment by providing that the award is in favor of "Thom Straley as President of Sea Breeze II Condo Association" (see CPLR 5019 [a]), and the clerk of the City Court is directed to correct the judgment accordingly. We find defendant's remaining contentions to be either unpreserved for appellate review (see Chimarios v Duhl, 152 AD2d 508 [1989]) or without merit.

Tanenbaum, J.P., Nicolai and Molia, JJ., concur.

Decision Date: December 16, 2011

20111216

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