234 A.D.2d 249, Board of Managers of Windridge Condominiums One v. Horn

Citation:234 A.D.2d 249, 651 N.Y.S.2d 326
Party Name:Board of Managers of Windridge Condominiums One v. Horn
Case Date:December 02, 1996
Court:New York Supreme Court Appelate Division, Second Department

Page 249

234 A.D.2d 249

651 N.Y.S.2d 326



Sadie HORN, etc., et al., Appellants.

Supreme Court of New York, Second Department

December 2, 1996.

        Gary Greenwald, Goshen (Erno Poll, of counsel), for appellants.

        James G. Sweeney, P.C., Goshen, for respondents.

        In an action to foreclose on a condominium unit for nonpayment of common charges, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Orange County (DiBlasi, J.), dated June 26, 1995, as granted the plaintiffs' motion for summary judgment and to dismiss the defendants' affirmative defenses and counterclaims.

        ORDERED that the order is affirmed insofar as appealed from, with costs.

        The plaintiffs commenced this action to foreclose on a unit of a condominium complex owned by the defendant Sadie Horn due to her failure to pay common charges. Pursuant to the bylaws of the condominium complex, these unpaid common charges constituted a lien against the unit. The defendants answered the complaint and interposed various affirmative defenses and counterclaims. The plaintiffs moved for summary judgment, and for dismissal of the defendants' affirmative defenses and counterclaims on the ground of res judicata. The Supreme Court granted the plaintiffs' motion and we now affirm.

        In response to the prima facie case of nonpayment established by the plaintiffs on their motion for summary judgment, the defendants failed to proffer evidence sufficient to raise a triable issue that payments of common charges had in fact been made or tendered. Accordingly, the Supreme Court properly granted the plaintiffs judgment as a [651 N.Y.S.2d 327] matter of law on their complaint (see, Bank of New York v. Progressive Phone Systems, 71 A.D.2d 1010, 420 N.Y.S.2d 421).

        Further, the court properly granted the plaintiffs' motion to dismiss the defendants' affirmative defenses and counterclaims. The doctrine of res judicata, or claim preclusion, provides that, "as to the parties in a litigation and those in privity with them, a judgment on the merits by a court of competent jurisdiction is conclusive of the issues of fact and questions of law necessarily decided therein in any subsequent action" (Gramatan Home Investors Corp. v. Lopez, 46 N.Y.2d 481, 485, 414 N.Y.S.2d 308, 386 N.E.2d 1328; see also, Matter of Reilly v....

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