Defendant appeals from the judgment of Supreme Court, New York County (Milton A. Tingling, J.), entered June 19, 2012, awarding plaintiffs a sum of money, and bringing up for review an order, same court and Justice, entered January 6, 2012, which confirmed the Special Referee's report on damages.
The opinion of the court was delivered by: Renwick, J., J.
Board of Mgrs. of the 25 Charles St. Condominium v Seligson
Appellate Division, First Department
Decided on March 21, 2013
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 Official Reports.
David Friedman,J.P. Rolando T. Acosta David B. Saxe Dianne T. Renwick Helen E. Freedman, JJ. Index 111102/07
This action involves a dispute between the owners of the two units of the 25 Charles Street Condominium, which is actually a "cond-op." A "cond-op" is a hybrid of a cooperative (coop) and a condominium (condo). One unit, the entire residential portion of the building (consisting of coop apartments), is legally both a residential cooperative and a condominium. The second unit, the commercial space, is the other condominium. The commercial space is owned by the defendant in this action, Celia Seligson.
The 25 Charles Street condominium was organized in 1986. Pursuant to the condominium's declarations and bylaws, the commercial and residential units were respectively allocated 10% and 90% of the common interest in the common elements. The bylaws further provided that the board of managers of the condo shall consist of three persons, two designated by the residential unit owner (coop) and one designated by the commercial unit owner.
On April 9, 2007, the two representatives from the coop held a condominium board meeting, despite the absence of the representative from the commercial unit, which was required for a quorum. At this meeting, the "board" adopted a budget for 2007 and a resolution concerning payment of arrears of common charges by the commercial unit. The board thereafter billed the commercial unit for amounts allegedly due. The commercial unit owner refused to pay them, asserting that the assessment against her was without authority and included amounts that should have been borne solely by the coop.
Subsequently, the coop and the "board" commenced this action seeking, inter alia, a declaration that the action they took at the April 9, 2007 meeting was valid. In her answer, defendant denied all substantive allegations and asserted affirmative defenses, alleging that the board was not authorized to act without defendant's presence. After all parties were deposed, plaintiffs moved for summary judgment, asserting that defendant had refused to participate in the board and pay her share of expenses and capital contributions, totaling $282,237.06, having made no payments to the condominium since the inception of her ownership of the commercial unit.Defendant cross-moved for summary judgment, challenging the formation of the "Board," without designating a representative of, or participation by, the commercial unit. Defendant asserted that the board could only be elected at a unit owners meeting, which had not occurred; that all prior expenses had been incurred without authority; and, that plaintiffs' attempt to collect expenditures made over 14 years earlier were time-barred. Rather than addressing the merits of the motion and cross motion, the motion court directed the parties to schedule a board meeting.
On December 1, 2009, the meeting was held and was attended by defendant, two residential unit owners on behalf of the coop, as well as the parties' attorneys. Before the meeting, plaintiffs provided defendant with an agenda, a proposed budget for 2010, and a breakdown of the "Commercial Unit Past Due Charges." At the meeting, defendant objected to the validity of the meeting as being one of the "board," asserting that the board must first be "elected" at a unit owners meeting. Defendant opposed all actions taken and was overruled by a vote of two to one on each matter, including the $282,256.58 charge for past-due expenses.
After the December 2009 board meeting, plaintiffs supplemented their motion for summary judgment. They asserted that the board meeting had been held pursuant to the October 2009 order, and that defendant attended the meeting, creating a quorum. Thus, plaintiffs sought an order declaring that the board's resolutions were proper and directing defendant to pay monies. Defendant responded that the common ...