Opinion
March 21, 1977
In an action, inter alia, to recover defendants' proportionate shares of the expenses of maintaining a certain beach, defendants appeal (by permission) from an order of the Appellate Term of the Supreme Court for the Ninth and Tenth Judicial Districts, dated February 18, 1976, which reversed so much of an order of the District Court, Suffolk County, entered May 15, 1975, as denied plaintiff's cross motion for summary judgment, and granted the said cross motion. Order reversed, on the law, without costs or disbursements, and cross motion denied. The Appellate Term properly determined that all property owners entitled to use the private beach were responsible for paying their proportionate shares of the expenses of maintaining the area (see Sea Gate Assn. v Fleischer, 211 N.Y.S.2d 767; Patchogue Props. v Cirillo, 54 Misc.2d 863, affd 60 Misc.2d 71). In the cases cited, the property owners had been deeded an easement which automatically entitled them to the benefit of the common facilities upon purchasing their properties. Since the defendants therein knew of the benefit (either directly, by their deeds, or indirectly, by the nature of the community), the courts found implied contracts to pay. In the present case, a triable issue of fact is presented as to whether an implied contract exists as to each defendant. Accordingly, the grant of summary judgment was improper. Hopkins, Acting P.J., Latham, Damiani and Rabin, JJ., concur.