Opinion
8688/2009.
Decided March 2, 2010.
Plaintiff was represented by Rosen, Livingston Cholst, LLP, 275 Madison Ave., NY, NY 10016 and Gartner Bloom, PC, 801 Second Ave., NY, NY 10017 on the counter-claim.
Defendant Weiss was represented by The Law Office of Daniel J. Borriello, 134 W. 13th St., NY, NY 10011.
Defendant JP Morgan Chase was represented by Steven J. Baum, PC, PO Box 1291, Buffalo, NY 14240.
Plaintiff moves for summary judgment and dismissal of plaintiff's counterclaims based on the assertion that there is no genuine issue of material fact that the defendant, Jeffrey K. Weiss (Weiss) owes the plaintiff $20,401.70 in condominium common charges. On a summary judgment motion the court must view the evidence in the light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference and determine whether there is any triable issue of fact outstanding. Branham v. Loews Orpheum Cinemas, Inc. , 8 NY3d 931 .
The defendant "vehemently" denies that the Condominium is owed any arrears. When a cause of action is based on documentary evidence, the authenticity of which is not disputed, a general denial, without more, will not suffice to raise an issue of fact. Gould v. McBride, 36 AD2d 706, see also Henri-Lynn Realty, Inc. v. Huang, 159 AD2d 486. However, in this case, the defendant has "presented evidentiary facts, sufficient to raise a triable issue of fact" regarding his indebtedness. See Henri-Lynn Realty, Inc., 159 AD2d 486.
In response to the motion, Weiss submitted correspondence between plaintiff's counsel and himself which references arrears, payment of such and damages to Weiss' apartment which he alleges are the condominium's responsibility to repair. Weiss also submitted copies of checks drawn in July of 2008, which were sent in payment of arrears. Plaintiff does not deny receipt or deposit of the second check attached to Weiss' papers. In its reply affirmation the plaintiff admits that "[i]n fact, Defendant Weiss's payment was for the undisputed amount of common charges due and owing to Plaintiff, and was only accepted when a replacement check without the improper indorsement was provided." Reply Aff. Of Andrew J. Wagner, Esq. Further, the documentary evidence which the plaintiff attached to the complaint, in support of its claim of the amount due, references charges beginning in August of 2005. As obviously there was some payment in 2007, a material issue of fact exists as to the amount, if any that is due to plaintiff.
In support of the motion, plaintiff cites cases which hold "an 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." See Eimer v. Board of Managers, 2009 NY Slip Op 51710U, Caprer v. Nussboum, 36 AD3d 176, Board of Managers of the 200 West 109 Condo v. Baker, 244 AD2d 229, Board of Managers of the Mews at N. Hills Condo v. Farajzadeh, 189 Misc 2d 38 [App. Tm., 2nd Dep't 2001]. While this is the general rule for owners who withhold common charges in derogation of the bylaws, this defendant's actions were arguable permitted under the bylaws and therefore the cases cited by plaintiff are distinguishable. See Residential Board of Managers of the Century Condominium v. Berman, 213 AD2d 206.As genuine issues of material fact exist as to whether the defendant owes the plaintiff the amount alleged and whether the amount withheld as an abatement was permitted under the bylaws the motion is denied.
This constitutes the decision and order of the Court.