Opinion
CC07-0036.
Decided September 10, 2008.
Jonis Strods, Esq., Attorney for Plaintiff, New York.
Samuel P. Giacona, Esq., Attorney for Defendant, New York.
Plaintiff Homeowner's Association commenced this small claims action seeking $1182.00 from the Defendant property owner. The claimed amount represents a proportionate share of the cost of the reconstruction of a roadway within the Martin Point development. Defendant refused to share in the cost of the reconstruction. Plaintiff proceeded with the reconstruction and thereafter brought this action.
The roadway in question is the sole means of ingress and egress for nine properties within Martin Point. Of these, eight properties are designated by the Association as part of the "Lakeview Group" and one property, owned by Defendant, is designated as part of the "Meadowview Group." All eight members of the Lakeview Group paid their one-ninth share of the roadway reconstruction, leaving Defendant as the sole objector. Defendant claims that she already pays a monthly assessment as a member of the Meadowview Group and, as a result, is not obligated to pay for a share of the cost of the roadway.
Plaintiff contends that a roadway reconstruction such as the one at issue is not covered by the monthly assessment, or maintenance fee, but rather constitutes a capital improvement covered by a special assessment. This Court agrees. Pursuant to Article XIII, Section 5 of the Plaintiff's Offering Plan (hereinafter "Offering Plan") and Article V, Section 5 of Plaintiff's Declaration of Covenants, Restrictions, Easements, Charges and Liens (hereinafter "Declaration"), special assessments for capital improvements may be levied for the cost of any "construction or reconstruction, unexpected repair or replacement of a described capital improvement upon the Common Areas. . . ." Such special assessments are in addition to the monthly assessments for operation and maintenance of common areas, set forth in Article V, Section 3 of the Declaration.
Thus, while each member pays a monthly assessment, there may be times when an additional or "special" assessment may be necessary to cover the cost of a capital improvement project, i.e., one that is outside of the normal operation and maintenance of a common area. The reconstruction of the roadway is one such type of project. That Defendant pays a monthly assessment to the Meadowview Group is of no consequence here. Those who directly benefit from a capital improvement project should bear the costs, regardless of what particular group they are associated with.
However, Defendant claims that Plaintiff violated Article V, Section 5 of the Declaration by failing to obtain the approval of the Members. Pursuant to Article V, Section 5 of the Declaration:
"[A special assessment] shall have the consent of two-thirds (2/3rds) of the votes of each class of Members who are voting . . . at a meeting duly called for this purpose. Written notice of any such meeting shall be sent to all Members not less than thirty (30) days nor more than sixty (60) days in advance of the meeting, setting forth the purpose of the meeting. The due date of any specified assessment shall be fixed in the Resolution authorizing such assessment."
While the reconstruction project was discussed at numerous meetings from 2004 through 2007, Plaintiff admitted at the hearing that no vote was taken by the affected landowners and no resolution was passed authorizing an assessment on each individual property. Thus, there appears to be no question that Plaintiff did not comply with the requirements of the Declaration.
Nevertheless, Defendant, along with the other affected homeowners, was kept apprised of the project and its cost throughout the entire planning phase and construction, which spanned several years. In fact, prior to the work being done, Defendant was advised in writing that the work would proceed. Other than objecting to the project and refusing to pay, Defendant took no action to stop the project from moving forward. Defendant could have pursued legal action in an attempt to resolve the issue before the expenses were incurred. Instead, she stood idly by while the reconstruction was done.
To allow Defendant to gain the benefit of the roadway reconstruction without the burden of paying her proportionate share would amount to unjust enrichment. "Unjust enrichment occurs where a party is enriched in an unjust matter" ( Satz v. Board of Education of the City of New York, 118 Misc 2d 676 (Civil Court, City of New York 1983)). It does not require a showing of wrongdoing on the part of the person enriched; "[i]nnocent parties may frequently be unjustly enriched" ( Cruz v. McAneney, 31 AD2d 54 (2d Dept 2006)).
In the instant case, Defendant is in the group of homeowners subject to the special assessment pursuant to the Declaration. As a result, she "cannot escape the financial obligation placed upon [her] as an owner of a unit subject to the [D]eclaration" ( Board of Directors of Millennium Homeowners Association v. Bosco , 8 Misc 3d 950 (Civil Court, City of New York 2005)). While Plaintiff did fail to comply with the Declaration, the work was done with the approval and cooperation of a majority of the affected homeowners. As eight of the nine homeowners paid for the project in advance, it is unlikely that had the Plaintiff strictly complied with the Declaration, the result would have been any different.
Defendant cannot escape the fact that she has benefitted from the roadway reconstruction. To allow her to go without paying her proportionate share, would be to punish the eight other homeowners and set a dangerous precedent for other members. The Association relies upon the monthly assessment and special assessments to maintain common property and fund capital improvement projects. If one member were to not pay the assessment, his or her share of the costs would have to be borne by the other members ( Millennium Homeowners Association, 8 Misc 3d at 956, 957). Such a result is not only unjust, it is in violation of the Offering Plan and Declaration and could cause financial hardship on the part of the Association and its members. One cannot be allowed to reap the benefits without sharing in the costs.
In order to achieve substantial justice between the parties, the Court finds that, under the facts and circumstances here, the Defendant must pay her proportionate share of the cost of the reconstruction project (UCCA § 1804). To hold otherwise would amount to unjust enrichment on the part of Defendant and would put the other eight affected homeowners in an unfair financial position. However, this court cautions that this decision does not in any way minimize the failure on the part of the Association to follow the requirements of the Declaration and Offering Plan. Such documents serve as important tools for the Association and its members and should, in most circumstances, be carefully followed.
The Court has considered the remaining contentions of the parties and finds them to either be without merit or unnecessary to reach in light of the above determination.
Accordingly, the Court grants Judgment to the Plaintiff in the amount of One Thousand, One Hundred and Eighty-two ($1182.00) Dollars with costs in the amount of thirty-six ($36.00) Dollars for a total of one thousand two hundred and eighteen ($1218.00) Dollars.