Bd. of Managers of Van Wyck Glen Condo. v. Van Wyck at Merritt Park Homeowners Ass'n, Inc.

211 A.D.3d 786

181 N.Y.S.3d 114

BOARD OF MANAGERS OF VAN WYCK GLEN CONDOMINIUM, et al., respondents,

v.VAN WYCK AT MERRITT PARK HOMEOWNERS ASSOCIATION, INC., et al., appellants (and a third-Party action).

2021–00411

Index No. 50017/17

Supreme Court, Appellate Division, Second Department, New York.

Argued—November 1, 2022

December 14, 2022

Braverman Greenspun, P.C., New York, NY (Jon Kolbrener and Kelly Ringston of counsel), for appellants.

Handel & Carlini, LLP, Poughkeepsie, NY (Anthony C. Carlini, Jr., of counsel), for respondents.

VALERIE BRATHWAITE NELSON, J.P., ANGELA G. IANNACCI, LINDA CHRISTOPHER, BARRY E. WARHIT, JJ.

DECISION & ORDER

In an action, inter alia, for declaratory relief, the defendants appeal from an order of the Supreme Court, Dutchess County (Christi J. Acker, J.), dated January 8, 2021. The order, insofar as appealed from, denied those branches of the defendants’ motion which were pursuant to CPLR 3211(a) or, in the alternative, for summary judgment dismissing the first cause of action and the second cause of action insofar as asserted against the defendants Anthony Costa and Dick Hack, and granted those branches of the plaintiffs’ motion which were for summary judgment awarding the plaintiffs the sum of $40,696.32 against the defendant Van Wyck at Merritt Park Homeowners Association, Inc., and dismissing so much of the first counterclaim as sought a judgment declaring the meaning of a certain provision in the plaintiffs’ respective by-laws.

ORDERED that the order is affirmed insofar as appealed from, with costs.

This action concerns related condominium communities in Fishkill, which include the Van Wyck Glen Condominium (hereinafter the Glen) and Van Wyck Meadows Condominium (hereinafter the Meadows) (hereinafter together the condominiums). The condominiums were developed by the same sponsor and each of their governing documents appoint the defendant Van Wyck at Merritt Park Homeowners Association, Inc. (hereinafter the HOA), to provide certain services in connection with the maintenance, repair, and replacement of the common elements of the condominiums, and authorized the HOA to collect assessments from the unit owners for such purposes. As relevant to this appeal, Article III, Section 11 of each condominium's bylaws, titled "Appointment of Board of Directors of Association as Irrevocable Managing Agent," provided that its board of managers "shall be deemed to have irrevocably appointed" the HOA to provide certain services in connection with the common elements. Shortly after the sponsor relinquished control of the condominiums to their respective boards of managers, issues arose with the HOA, and the condominiums sought to take control of some of the services that the HOA had been providing.

The plaintiffs, the board of managers of the Glen and the board of managers of the Meadows, commenced this action against the HOA and two of its board members, the defendants Anthony Costa and Dick Hack. The first cause of action sought a judgment declaring the parties’ respective rights to maintain and repair the common elements of the condominiums. The second cause of action sought damages for breach of fiduciary duty. In their answer, the defendants asserted several counterclaims, the first of which sought a judgment declaring, among other things, the meaning of "Irrevocable Managing Agent" as used in Article III, Section 11 of the plaintiffs’ respective bylaws.

Settlement negotiations ensued, and by order dated September 26, 2018, made upon the stipulation of the parties, the Supreme Court, inter alia, directed both plaintiffs to hold a meeting to amend their respective bylaws. Each of the plaintiffs subsequently held meetings at which the homeowners voted to approve an amendment to the condominium's bylaws deleting the existing language in Article III, Section 11, and replacing it with a provision by which the board of managers would consult with the HOA, among others, for the purpose of providing uniform services and appearance within the community of related condominiums.

Thereafter, the defendants moved pursuant to CPLR 3211(a), or, in the alternative, for summary judgment dismissing the complaint. The plaintiffs moved, among other things, for summary judgment dismissing so much of the first counterclaim as sought a judgment declaring the meaning of "Irrevocable Managing Agent" as used in Article III, Section 11 of the plaintiffs’ respective by-laws, and awarding the plaintiffs the sum of $40,696.32 for rental revenue wrongfully retained by the defendants. In an order dated January 8, 2021, the Supreme Court, inter alia, granted those branches of the plaintiffs’ motion, and granted that branch of the defendants’ motion which was to dismiss the second cause of action insofar as asserted against the HOA, but otherwise denied their motion. The defendants appeal.

The Supreme Court properly granted that branch of the plaintiffs’ motion which was for summary judgment dismissing so much of the first counterclaim as sought a judgment declaring the meaning of "Irrevocable Managing Agent" as used in Article III, Section 11 of the plaintiffs’ respective bylaws. Contrary to the...