Murphy v. The Bd. of Managers of Brooklyn Villas Condo.

1

2021 NY Slip Op 33845(U)

Shimere Murphy, Plaintiff, v. The Board of Managers of Brooklyn Villas Condominium, Brooklyn Villas Condominium, Brooklyn Villas, LLC, Brooklyn Villas LP, Harold Weisman, ISAAC Deutsch, Chaya Deutsch and Carl Caller, Defendants.

Index No. 520036/2017, Seq. Nos. 009, 010, NYSCEF Doc. No. 180

Supreme Court, Kings County

April 9, 2021

Unpublished Opinion

DECISION/ORDER

DEVIN P. COWN, JUSTICE

Papers

Numbered

Notice of Motion and Affidavits Annexed. . . . . . . 1, 2

Oder m Show Cause and Affidavits Annexed. . . . . 2, 3

Answering Affidavits. . . . .3

Replying Affidavits . . . . .

Inhibits . . . . .

Other . . . .

Upon the foregoing papers^[1], defendant Hoard of Managers of Brooklyn Villas Condominium's ("the Board") motion for summary judgment (Seq. 009) and plaintiff's cross-motion to amend and to compel (Seq. 010) are decided as follows:

Plaintiff commenced this action for damages against defendants concerning a trip-and-fall accident that occurred on November 19, 2014. on the sidewalk adjacent to property located at 22 Juliana Place, Brooklyn, New York. The Board of Managers seeks summary judgment to dismiss plaintiff's claims against it.

On a motion for summary judgment, the moving party bears the initial burden of making a prima facie showing that there are no triable issues of material fact (Giuffrida v. Citibank, 100 N.Y.2d 72, 81 [2003]). Once a prima facie showing has been established, the burden shifts to the non-moving party to rebut the movant's showing such that a trial of the action is required (Alvarez v Prospect Hospital, 68 N.Y.2d 320. 324 [1986]).

As an initial matter, the Board fails to attach a copy of all of the pleadings. This alone warrants denial of the Board's motion (Rivera v City of New York, 173 A.D.3d 790 791 [2d Dept 2019]). Nevertheless, I will address the merits of the Board's motion.

The Board argues that, as an unincorporated association, it cannot be sued (Pascual v Rustic Woods Homeowners Ass'n, Inc., 134 A.D.3d 1006, 1006[2d Dept 2015]; 2834-2838 Brighton 3rd St. Condominium v Bazinian, 66 Mise 3d 143[A], 2020 NY Slip Op 50180[U], *1 [App Term. 2d. 11th and 13th Jud Dists 2020]). Instead, the president and/or treasurer of the board must be the named defendants (Pascual, 134 A.D.3d at 1006 citing General Associations Law § 13), This motion is the Board's second request for summary' judgment. By motion, filed on August 5, 2019, the Board requested summary judgment on the same basis. The motion was adjourned on consent of the parties and. thereafter, administratively adjourned due to the Covid-19 pandemic. By order, dated July 22, 2020,1 denied the motion as premature because plaintiff needed discovery' to respond to the motion. Indeed shortly thereafter, the court (Colon. J.) set deadlines for the depositions of the parties. Only three months after my order denying the Board's first motion for summary judgment, the Board moves again for summary' judgment on the same basis.

Although no one with personal know ledge of the Board's legal status as an unincorporated association submits any admissible evidence of such, plaintiff does not appear to dispute this point. Instead, plaintiff cross-moves to amend the complaint to add the president and treasurer as named defendants. However, it does not know these names of these individuals and so it seeks an order compelling the Board of Managers to identify them. Plaintiff explained that he deposed Abe Friedman, the principal of All Care Management ("ACM"), w ho defendant produced for deposition as its representative, ACM manages the subject property (Abe Friedman EBT at 8). Plaintiff claims that Abe Friedman did not provide the identities of the president or the treasurer of the Board.

The Board argues that plaintiff may not amend the complaint to add the president or treasurer because, the Board claims, plaintiff served the instant summons and complaint upon the Board through Mayer Friedman, who plaintiff previously sued for the same claims and who the court previously dismissed. The Board of Managers refers to an action titled Shimere Murphy v Brooklyn Villas LLC, Mayer Friedman, and Carl Caller, Index No. 505266 2016. in which plaintiff sued those defendants for damages caused by a trip-and-fall accident on the same day and sidewalk adjacent to the same property as in the instant action. By order dated June 12, 2017. the court (Wooten, J.) dismissed Mr. Friedman from the suit.

The Board of Managers relies upon the decision in Marfin v Curran {303 NY 276 [1951]) to argue that all members of an unincorporated associated must be liable for the association to be held liable. The Court of Appeals further recognized that an unincorporated association "is not an artificial person, and has no existence independent of its members" (Marfin, 303 NY at 280). The Board further claims that, because Mr. Friedman is a member of the Board (Soloveichik affirmation at ¶ 7). and plaintiff s claims against him were previously dismissed, that none of the members or officers of the Board may be sued. Notably, Mr. Friedman has never submitted an affidavit in this action attesting to his role with the Board. Nevertheless, the Board argues that because Mr. Friedman was previously dismissed, plaintiff cannot amend his complaint to name the Board's officers, such as the president or treasurer.

Interestingly in the prior action, counsel for Mr. Friedman argued that Mr. Friedman, who apparently was named as the chairman of the Board of Managers of Brooklyn Villas Condominium in a document from 2003, should not be held liable for plaintiffs accident because Mr, Friedman was not an owner of the property. Although Mr. Friedman did not himself submit an affidavit in support of the motion, counsel further sought to distance Mr. Friedman from this prior action by claiming that Mr, Friedman was not an occupant of the subject...