Board of Mgr. of Whispering v. Whispering

Full title: BOARD OF MANAGERS OF WHISPERING PINES AT COLONIAL WOODS CONDOMINIUM II…

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: May 9, 1994

204 A.D.2d 376 (N.Y. App. Div. 1994)

614 N.Y.S.2d 160

Opinion

May 9, 1994

Appeal from the Supreme Court, Suffolk County (Tanenbaum, J.).

Ordered that the order dated November 20, 1991, is affirmed insofar as appealed from; and it is further,

Ordered that the order dated March 29, 1993, is affirmed insofar as appealed and cross-appealed from; and it is further,

Ordered that the plaintiff is awarded one bill of costs.

We agree with the conclusion of the Supreme Court that the plaintiff's seventh cause of action stated a cognizable claim for breach of fiduciary duties owed by a sponsor-appointed, first board of managers of a condominium development (see, Board of Mgrs. v. Fairway at N. Hills, 193 A.D.2d 322). Accordingly, the court correctly denied the defendants' motion to dismiss the plaintiff's seventh cause of action for failure to state a cause of action. The court likewise was correct in denying the motion and cross motion for summary judgment dismissing the seventh cause of action and the seventh affirmative defense and first counterclaim respectively, as issues of fact exist precluding any award of summary judgment on that cause of action, affirmative defense, and counterclaim. Miller, J.P., Altman, Goldstein and Florio, JJ., concur.