Bd. of Managers of White Sands Condo. v. Cooper

• Decision Date: 16 February 2012
• Docket Number: No. 2010–3037 N C.,2010–3037 N C.
• Citation: 951 N.Y.S.2d 85,2012 N.Y. Slip Op. 50310,34 Misc.3d 152
• Parties: The BOARD OF MANAGERS OF WHITE SANDS CONDOMINIUM, Respondent, v. Jerome COOPER and Iylene Cooper, Appellants.
• Court: New York Supreme Court — Appellate Division

34 Misc.3d 152

951 N.Y.S.2d 85

2012 N.Y. Slip Op. 50310

The BOARD OF MANAGERS OF WHITE SANDS CONDOMINIUM, Respondent,

v.Jerome COOPER and Iylene Cooper, Appellants.

No. 2010–3037 N C.

Supreme Court, Appellate Term, New York, 9th and 10th Judicial Districts.

Feb. 16, 2012.

OPINION TEXT STARTS HEREAppeal from an order of the City Court of Long Beach, Nassau County (Frank D. DiKranis, J.), dated July 7, 2010, deemed from a judgment of the same court entered July 29, 2010 (see CPLR 5501[c] ). The judgment, entered pursuant to the July 7, 2010 order granting plaintiff's motion for summary judgment, awarded plaintiff the principal sum of $8,431.

Present: NICOLAI, P.J., MOLIA and IANNACCI, JJ.

ORDERED that the judgment is affirmed, without costs.

The Board of Managers of White Sands Condominium brought this action to recover the principal sum of $7,931.18 in unpaid “maintenance and/or common charges and other charges due” from defendants for the period up to June 5, 2009 ( compare Board of Mgrs. of White Sands Condominium v. Cooper, –––Misc.3d ––––, 2012 N.Y. Slip Op ______ [Appeal No.2011–766 N C], decided herewith). Following defendants' service of an answer, which did not contain a counterclaim, plaintiff moved for summary judgment. In opposition to plaintiff's motion, defendants presented substantial evidence that their unit had been damaged by flooding and by water intrusion, not only through the sliding doors, for which defendants were responsible, but also through its exterior walls, which constituted common elements of the building for which White Sands Condominium (Condominium) was responsible. The water infiltration was not alleged to have occurred during a single cataclysmic event, but rather, “every time it rains.” Defendants also presented evidence that, as a result of the water incursion, their unit had been contaminated and rendered uninhabitable by mold, and that they had accordingly vacated the unit. Defendants asserted that the mold contamination constituted a “casualty loss” for which, under the Condominium's bylaws, the defendants were entitled to a “proportionate abatement” of their common charges. The City Court awarded summary judgment to plaintiff, finding, in pertinent part, that the mold contamination did not constitute a “casualty loss” and that defendants had failed to raise an issue of material fact in opposition to plaintiff's prima facie showing of entitlement to summary judgment.

The Condominium bylaws allow for the proportionate...