Board of Mgrs. of White Sands Condominium v Cooper
Decided on February 16, 2012
Appellate Term, Second Department
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This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: NICOLAI, P.J., MOLIA and IANNACCI, JJ
Appeal from an order of the City Court of Long Beach, Nassau County (Frank D. DiKranis, J.), dated July 7, 2010, deemed from a judgment of the same court entered July 29, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 7, 2010 order granting plaintiff's motion for summary judgment, awarded plaintiff the principal sum of $8,431.
ORDERED that the judgment is affirmed, without costs.
The Board of Managers of White Sands Condominium brought this action to recover the principal sum of $7,931.18 in unpaid "maintenance and/or common charges and other charges due" from defendants for the period up to June 5, 2009 (compare Board of Mgrs. of White Sands Condominium v Cooper, ___ Misc 3d ___, 2012 NY Slip Op ______ [Appeal No. 2011-766 N C], decided herewith). Following defendants' service of an answer, which did not contain a counterclaim, plaintiff moved for summary judgment. In opposition to plaintiff's motion, defendants presented substantial evidence that their unit had been damaged by flooding and by water intrusion, not only through the sliding doors, for which defendants were responsible, but also through its exterior walls, which constituted common elements of the building for which White Sands Condominium (Condominium) was responsible. The water infiltration was not alleged to have occurred during a single cataclysmic event, but rather, "every time it rains." Defendants also presented evidence that, as a result of the water incursion, their unit had been contaminated and rendered uninhabitable by mold, and that they had accordingly vacated the unit. Defendants asserted that the mold contamination constituted a "casualty loss" for which, under the Condominium's bylaws, the defendants were entitled to a "proportionate abatement" of their common charges. The City Court awarded summary judgment to plaintiff, finding, in pertinent part, that the mold contamination did not constitute a "casualty loss" and that defendants had failed to raise an issue of material fact in opposition to plaintiff's prima facie showing of entitlement to summary judgment.
The Condominium bylaws allow for the proportionate abatement of common charges to owners of Condominium units which have been rendered wholly or partially unusable as a result of damage resulting from a "casualty loss," which is defined as encompassing destruction "by fire or other casualty." We conclude that the City Court correctly awarded summary judgment to plaintiff, since plaintiff made a prima facie showing of its entitlement to recover common charges from defendants, and defendants failed to establish that a material issue of fact existed as to whether they had suffered a "casualty loss" within the meaning of the Condominium bylaws (see Schottenstein v Windsor Tov, LLC, 85 AD3d 546, 547 ).
Accordingly, the judgment is affirmed.
Molia and Iannacci, JJ., concur.
Nicolai, P.J., taking no part.
Decision Date: February ...