Opinion
Index No. 152273/2021
08-11-2023
Lincoln Avenue Condominium, BOARD OF MANAGERS OF LINCOLN AVENUE CONDOMINIUM, Plaintiffs, v. Ismail Demirovic, Defendant.
Attorney for the Plaintiff Robert Joseph Cecere DANIELS, NORELLI CECERE & TAVEL Attorney for the Defendant Joseph Gregorio Canepa Joseph G. Canepa, PLLC
Unpublished Opinion
Attorney for the Plaintiff
Robert Joseph Cecere
DANIELS, NORELLI CECERE & TAVEL
Attorney for the Defendant
Joseph Gregorio Canepa
Joseph G. Canepa, PLLC
Ronald Castorina, Jr., J.
HON. RONALD CASTORINA, JR, JUSTICE.
The following papers were read on this motion, e-filed, and numbered via NYSCEF as follows: 25-59. Oral argument was heard in court on August 10, 2023.
I. Facts
Plaintiff seeks an Order pursuant to CPLR §3211 [b] dismissing Defendant's Affirmative Defenses as improperly pled, bare legal conclusions without assertions of supportive facts; an Order pursuant to CPLR §603 severing Defendant's Counterclaims for not being inextricably intertwined; and for an Order pursuant to CPLR §3212 granting Plaintiff summary judgment on the entirety of its complaint against the Defendant as a matter of law for failure to pay common charges and special assessments, or, alternatively for an Order permitting Plaintiffs to collect directly the rent paid by Defendant's tenant(s) pursuant to §339-kk of the Real Property Law to satisfy Defendant's ongoing common charge obligations or to offset Defendant's common charge arrears pending the resolution of this action, and for such other, further, and different relief as to this Court seems just and proper.
Defendant opposes and argues that his affirmative defenses are properly pled with sufficient assertions of supported facts and must not be dismissed as a matter of law, that [1] the First Affirmative Defense is founded upon documentary evidence, [2] that as to the Third Affirmative Defense: the damages were caused by Plaintiff's wrongful or culpable conduct, and that [3] as to the Sixth Affirmative Defense: The doctrine of laches, equitable estoppel, res judicata, waiver and release, mistake and unclean hands are applicable. Defendant further contends that an "agreement" exists between the parties allowing him to withhold common charges and special assessments.
II. Discussion
A. Defendant's Relief Requested in Opposing Papers
At the outset, Defendant seemingly seeks in his opposition papers affirmative relief in the nature of [1] dismissing Plaintiff's Affirmative Defenses asserted in Plaintiff's Reply to Defendant's Counterclaims, and [2] summary judgment on Defendant's Counterclaims. To the extent that Defendant seeks affirmative relief in his opposition papers, that request for relief is DENIED without prejudice, as improperly before this Court. A motion brought either as a Cross-motion, by separate Notice of Motion, or by Order to Show Cause are the only vehicles by which this Court could examine the relief sought (Knopp v Slater, 258 A.D.2d 624 [2d Dept 1999]; Pierre v City of New York, 22 A.D.3d 733 [2d Dept 2005]).
B. Affirmative Defenses
It is axiomatic that Affirmative Defenses which merely plead conclusions of law are insufficient and subject to dismissal (Robbins v Growney, 229 A.D.2d 356 [1996]). The Defendant has plead the following Affirmative Defenses: (See NYSCEF Doc. No.: 20)
i. Defendant's defenses are founded upon documentary evidence.
ii. Plaintiff fails to state a cause of action against Defendant.
iii. Although denied by Defendant, if Plaintiff sustained the damages complained of, such damages were caused in whole or in part because of Plaintiff's wrongful or culpable conduct.
iv. Plaintiff lacks standing.
v. Plaintiff lacks capacity.
vi. The doctrines of laches, equitable estoppel, res judicata, waiver, release, mistake, and unclean hands, respectively bar Plaintiff's claims.
vii. Plaintiff failed to name necessary parties.
viii. Plaintiff materially breached the contract, relieving and/or excusing Defendant from his contractual duties under the contract.
ix. Defendant is entitled to an offset and/or diminution of any damages, if any, found to be owing to Plaintiff as a result of property damage caused and continuing to be caused by Plaintiff's breach of contract.CPLR §3018 [b] requires, with respect to Affirmative Defenses, that "[a] party shall plead all matters which if not pleaded would be likely to take the adverse party by surprise or raise issues of fact not appearing on the face of a prior pleading." Affirmative Defenses, although specifically addressed by CPLR §3018 [b], must also satisfy CPLR §3013 (Becher v Feller, 64 A.D.3d 672 [2d Dept 2009]; see Cohen Fashion Optical v V & M Optical Inc, 51 A.D.3d 619 [2d Dept 2008]). CPLR §3013 requires that "[s]tatements in a pleading shall be sufficiently particular to give the Court and parties notice of the transactions, occurrences, or series of transactions and occurrences, intended to be proved and the material elements of each cause of action or defense."
While the days of Courts strictly construing pleadings ended with the CPLR 's liberalization of pleading requirements, the minimum requirements set forth in CPLR §§3018 [b] and 3013 are still applicable today. In Foley v D'Agostino, (21 A.D.2d 60 [1964]) the Court analyzed the new CPLR liberalized pleading requirements, holding that "it is clear that, under the CPLR, the statements in pleadings are still required to be factual, that is, the essential facts required to give notice must be stated," and "a party may supplement or round out his pleading by conclusory allegations if the facts upon which the pleader relies are also stated."
It is clear to this Court that the nine (9) Affirmative Defenses asserted by Defendant fail to present anything more than mere conclusory statements and bald allegations without recitation of any facts whatsoever, as required by CPLR §§3018 [b] and 3013. They are essentially boilerplate statements and conclusions of law without anything more. "Defenses which merely plead conclusions of law without supporting facts are insufficient and should be stricken" (Petracca v Petracca, 305 A.D.2d 566 [2d Dept 2003]; abrogated by Butler v Catinella, 58 A.D.3d 145 [2d Dept 2008].
Based upon the foregoing, each and every Affirmative Defense raised by the Defendant are hereby stricken, and Plaintiff's requested relief pursuant to CPLR §3211 [b] is GRANTED.
C. Summary Judgment pursuant to CPLR §3212
Summary judgment is a drastic remedy that deprives a litigant of his or her day in court, and it" 'should only be employed when there is no doubt as to the absence of triable issues'" (Pizzo-Juliano v Southside Hosp., 129 A.D.3d 695, 696 [2d Dept 2015], quoting Andre v Pomeroy, 35 N.Y.2d [1974]; see Trio Asbestos Removal Corp v Gabriel & Sciacca Certified Pub Accountants, LLP, 164 A.D.3d 864, 865 [2d Dept 2018]). The function of a court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist (see Castlepoint Ins Co v Command Sec Corp, 144 A.D.3d 731 [2d Dept 2016]; Dorival v DePass, 74 A.D.3d 729, 730 [2d Dept 2010]; Rudnitsky v Robbins, 191 A.D.2d 488, 489 [2d Dept 1993]). Thus, summary judgment "should only be granted where there are no material and triable issues of fact," and "the papers should be scrutinized carefully in the light most favorable to the party opposing the motion" (Ptasznik v Schultz, 223 A.D.2d 695, 696 [2d Dept 1996]; Gitlin v Chirinkin, 98 A.D.3d 561, 562 [2d Dept 2012]).
The following facts are undisputed: [1] the Defendant has not raised any issue as to the correctness of the amounts presented regarding the money owed and not paid by Defendant pursuant to a contractual obligation under the By-laws of the Lincoln Avenue Condominium, [2] the Defendant does not reside in either of the two units at issue herein, to wit: Unit 2L and Unit 6L, [3] That the units are owned by the Defendant as investment properties, and [4] that the units are part of a Condominium, and subject to the By-laws of the Lincoln Avenue Condominium.
The condominium By-laws do not permit an owner to withhold common charges or special assessments. The By-laws obligate the Unit Owners, to pay common charges assessed by the Board of Managers without any abatement or set-off (Article 6.4.1 of the By-laws). The By-laws further provide, inter alia, that the Unit Owners of the units in the condominium who fail to pay common charges or additional assessments to Plaintiffs when due shall also be obligated to pay interest thereon from such due date(s), together with late charges imposed by Plaintiffs, together with all expenses of collection, including but not limited to attorney's fees and Court costs" (Article 6.6 of the By-Laws of the Lincoln Avenue Condominium, Exhibit A). The obligation of a unit owner to pay common charges and special assessments cannot be avoided (NY Real Prop Law §339-x) and are, for the most part, absolute (Bd of Managers of First Ave Condo v Shandel, 143 Misc.2d 1084 [Civ Ct NY County 1989]. The cases are legion which hold that "an individual unit owner cannot withhold payment of common charges and assessments in derogation of the By-laws of the condominium based upon defective conditions in a unit or common areas" (See Board of Managers of First Avenue Condominium, supra; Caprer v Nussbaum, 36 A.D.3d 176 [2d Dept 2006]; Bd of Managers of the 200 W 109 Condo v Baker, 244 A.D.2d 229 ; Bd of Managers of the Mews at N Hills Condo v Farajzadeh, 189 Misc.2d 38 [App Term 2001].
Here, there are no triable issues of fact that preclude summary judgment in favor of Plaintiff as to its Complaint. The Defendant, an owner of two condominium units, which he rents for profit, is not entitled to withhold the payment of common charges and special assessments owing to the condo board of managers because of a water leak within his units (Frisch v Bellmarc Mgt, 190 A.D.2d 383 ). Defendant's arguments that this case is akin to Granda v Condominium I v Morris (225 A.D.2d 520 [2d Dept 1996] is without misplaced and distinguishable. The Granda case is inapplicable because it was premised upon an agreement entered by the parties thereto, wherein the parties agreed to the purported "withholding" of payment of common charges (by having the payment of common charges paid into escrow instead). Defendant alleges a meeting with a building supervisor, Elliot Katz, wherein, he claims that he was told to withhold common charges on the Units until the water leaks were fixed. This assertion was not supported by an affidavit from Mr. Katz, nor was it reduced to writing and executed by the parties. The court notes that the common charges are in excess of $800.00 per unit, and combined are in excess of $1,600.00. Thus, any agreement, not in writing, would be violative of the Statute of Frauds, and unenforceable. The Statute of Frauds was designed to guard against the peril of perjury; to prevent the enforcement of unfounded fraudulent claims (Morris Cohon and Co v Russell, 23 N.Y.2d 569 [1969]). The only evidence produced by the Defendant of this purported agreement, is a self-serving e-mail written by the Defendant, memorializing an alleged conversation with Mr. Katz, and some indices that on occasion, he was not charged a "late fee." The Court does not find that there was an enforceable agreement by and between the parties to withhold common charges and special assessments, and as such the obligation to pay same is and remains absolute pursuant to the By-laws and the well established Second Department case law.
Therefore, based upon the foregoing, summary judgment on the Complaint in favor of the plaintiff is GRANTED in its entirety, and that the issue of the amount of legal fees due and owing to Plaintiff in connection herewith is set down for an inquest on September 12, 2023 at 2:15PM in person at the courthouse.
D. Severance of Counterclaims pursuant to CPLR §603
Considering this Court's Order granting summary judgment in favor of the Plaintiff on the Complaint in its entirety, Plaintiff's request to sever Defendant's Counterclaims pursuant to CPLR §603 is DENIED as moot. The action shall continue as to Defendant's Counterclaims, accordingly, a Preliminary Conference is hereby scheduled for September 12, 2023 at 2:15PM, in person at the courthouse.
III. Decretal Paragraphs
Based upon the foregoing, it is hereby ORDERED, that Plaintiff's request for an Order severing Defendant's Counterclaims pursuant to CPLR §603 is DENIED as moot, and it is further;
ORDERED, that Plaintiffs request for an Order dismissing Defendant's Affirmative Defenses pursuant to CPLR §3211 [b] is GRANTED, and it is further;
ORDERED, that Plaintiff's request for an Order pursuant to CPLR §3212 granting Plaintiff summary judgment on the entirety of its Complaint as against Defendant is GRANTED, and it is further;
ORDERED, that Plaintiff submit a proposed Judgment, on notice, in accordance with this Decision and Order within 20 days hereof; and it is further;
ORDERED, that the matter is set down for an inquest on the issue of counsel fees on September 12, 2023, at 2:15 PM, in person at the courthouse, and it is further;
ORDERED, that the case will proceed with respect to Defendant's Counterclaims and that the matter is set down for a Preliminary Conference on September 12, 2023 at 2:15PM, in person at the courthouse, and it is further;
ORDERED, that the remaining contentions of the parties having been considered by the Court are deemed moot and/or unavailing and therefore DENIED, and it is further;
ORDERED, that the clerk of the court shall enter judgment accordingly.
This shall constitute the Decision and Order of the Court.