Opinion
April 2, 1992
Appeal from the Supreme Court, New York County (Edward H. Lehner, J.).
The IAS court properly granted summary judgment upon findings that the arcade in which defendant-appellant placed its produce stands was part of the common elements of the condominium, that such use was in violation of the Condominium Documents, that plaintiff Board was authorized to compel removal of this encroachment (Board of Managers v Fenninger, 142 A.D.2d 622), and that even if the Board had initially waived its right to enforce the Condominium Documents, such was effectively withdrawn by the subsequent notice to remove the produce stands (see, Compton Adv. v Madison-59th St. Corp., 91 Misc.2d 768, 778, affd 63 A.D.2d 942). The IAS court properly dismissed plaintiff's remaining causes of action for failure to refute assertions that the disputes raised therein had been resolved (see, Oates v Marino, 106 A.D.2d 289, 291-292), and properly denied attorneys' fees which were not specifically sought in a separately stated cause of action, and in any event would not be chargeable against defendant South End.
Concur — Sullivan, J.P., Milonas, Rosenberger, Ellerin and Kassal, JJ.