Opinion
November 29, 1965
In an action to recover from the defendant homeowner her proportionate share of the cost of maintaining a private community controlled by the plaintiff corporation, the homeowner appeals, pursuant to leave of this court, from: (1) an order of the Appellate Term of the Supreme Court, entered October 30, 1964, affirming the following orders and judgment of the Civil Court of the City of New York, Kings County, (a) an order entered April 4, 1963, which granted plaintiff's motion for summary judgment; (b) an order entered April 2, 1963, which denied defendant's cross motion for summary judgment; and (c) a judgment entered April 9, 1963, which awarded to plaintiff $1,052.18 for damages, interest and costs; (2) a judgment of such affirmance entered November 9, 1964 in said Civil Court; and (3) an order of said Appellate Term, entered November 30, 1964, which denied defendant's motion for reargument or for leave to appeal to this court. Order of Appellate Term, entered October 30, 1964, and judgment of affirmance entered in the Civil Court, affirmed, with costs. Appeal from order, entered November 30, 1964, dismissed, without costs, as not appealable. In our opinion, defendant failed to furnish any factual data competent to raise a triable issue of fact. The Civil Court therefore properly resorted to the latest comparable case, justifying plaintiff's right to recovery on various principles of law ( Sea Gate Assn. v. Fleischer, 211 N.Y.S.2d 767). Beldock, P.J., Ughetta, Brennan, Rabin and Benjamin, JJ., concur.