Opinion
March 9, 1995
Appeal from the Supreme Court, New York County (William McCooe, J.).
The Supreme Court properly determined that the decision in Frisch v. Bellmarc Mgt. ( 190 A.D.2d 383, 389) wherein this Court stated that "[a]n individual unit owner * * * cannot withhold payment of common charges and assessments in derogation of the bylaws of the condominium based on defective conditions in his unit or in the common areas" since plaintiff's claims "cannot be based on a breach of the statutory warranty of habitability", does not mean that a unit owner is precluded from interposing any defenses at all to an action for foreclosure even where, as in the instant situation, there is no claim that such owner is in derogation of any of the condominium's bylaws. The record indicates that it is plaintiff, not the unit owner, who is in violation of the obligations imposed by the bylaws. Therefore, Frisch v. Bellmarc Mgt. is distinguishable from the matter herein.
Concur — Ellerin, J.P., Rubin, Ross, Nardelli and Tom, JJ.