Bd. of Managers of Brightwater Towers Condo. v. Lukashevskaya

• Decision Date: 25 September 2012
• Docket Number: No. 27011/09.,27011/09.
• Citation: 37 Misc.3d 1202,964 N.Y.S.2d 57,2012 N.Y. Slip Op. 51843
• Parties: BOARD OF MANAGERS OF BRIGHTWATER TOWERS CONDOMINIUM, Plaintiff, v. Bella LUKASHEVSKAYA; and JPMorgan Chase Bank, N.A., Defendants.
• Court: New York Supreme Court

37 Misc.3d 1202

964 N.Y.S.2d 57

2012 N.Y. Slip Op. 51843

BOARD OF MANAGERS OF BRIGHTWATER TOWERS CONDOMINIUM, Plaintiff,

v.Bella LUKASHEVSKAYA; and JPMorgan Chase Bank, N.A., Defendants.

No. 27011/09.

Supreme Court, Kings County, New York.

Sept. 25, 2012.

Thomas P. Higgins, Esq., Higgins & Trippett LLP, New York City, Attorneys for Plaintiff.

William A. Gogel, Esq., Agulnick & Gogel, LLC, Great Neck, Attorneys for Defendant Lukashevskaya.

FRANCOIS A. RIVERA, J.

By notice of motion filed on March 14, 2012, under motion sequence number four, plaintiff Board of Managers of Brightwater Towers Condominium (hereinafter the Board) has moved for an order: (1) confirming in part and disaffirming in part a referee's report pursuant to CPLR 4403; (2) fixing attorney's fees due to the Board; and (3) for a judgment of foreclosure and sale pursuant to RPAPL § 1351.

Defendant Bella Lukashevskaya (Lukashevskaya) has opposed the motion. Defendant JPMorgan has not appeared in the action.

BACKGROUND

The Board manages the affairs of Brightwater Towers Condominium (hereinafter Brightwater) located at 601 Surf Avenue, Brooklyn, New York. Lukashevskaya owns residential unit 15R at Brightwater. On October 26, 2012, the Board commenced the instant action to foreclose upon a condominium common charge lien by filing a summons, complaint and notice of pendency with the Kings County Clerk's office. The common charge lien was filed against unit 15R pursuant to Article 9–B of the Real Property Law (the Condominium Act).

Lukashevskaya defaulted in answering the complaint.

On November 16, 2011, the court appointed Mary Noe, Esq., as referee (hereinafter the referee) to compute the amounts due to the Board under the lien and to ascertain whether the unit should be sold in parcels. The Board submitted affidavits, documents and testimony to the referee and asserts that the amount due to them be computed as $26,573.84 as of January 9, 2012.

The referee filed her sworn report dated January 13, 2012. The referee computed the amount due to the Board for assessments to be $1,103.88, but rejected the Board's request for late fees, bad check charges, additional common charges, legal fees, air conditioning fees and parking fees.

The Board has moved to confirm that part of the referee's report which computed the amount due to the Board for assessments to be $1,103.88 and to disaffirm the rest. The Board, has alleged, among other things, that the referee exceeded the scope of her authority in questioning the validity of the charges that she had disallowed.

MOTION PAPERS

The Board's motion papers consist of a notice of motion, an affirmation of counsel, and twelve annexed exhibits labeled A through L. Exhibit A is the instant summons and complaint and three affidavits of service. Exhibit B is the notice of pendency of action, and three affidavits of service. Exhibit C is the notice of appearance of defendant Lukashevskaya, dated June 24, 2011. Exhibit D is the order of reference and related relief, dated November 16, 2011. Exhibit E is the referee's oath and report of amount due to plaintiff, dated January 13, 2012, and an affidavit of service.Exhibit F is the affidavit of plaintiff of amount due under common charge lien, dated January 9, 2012. Exhibit G is the supplemental affidavit of plaintiff of amounts due under common charge lien, dated January 13, 2012. Exhibit H is the order of this court, dated November 16, 2011, which among other things, appointed a referee to compute. Exhibit I is a portion of Brightwater Towers Condominium's by-laws. Exhibit J are portions of the Declaration showing percentage interest assigned to each parking unit. Exhibit K is the notice of default, dated May 29, 2009. Exhibit L is the judgment of foreclosure and sale.

The Board also submitted a separate supplemental affirmation of Thomas P. Higgins in support of its application for attorneys' fees, and four annexed exhibits labeled A through D. Exhibit A is a copy of Article IX of the by-laws of Brightwater. Exhibit B is Mr. Higgins' resume. Exhibit C is a printout of the breakdown for the work he did for the Board through February 29, 2012. Exhibit D is a printout of the expenses and disbursements through February 1, 2012.

Lukashevskaya opposed the motion with an affirmation of counsel and an annexed copy of the referee's oath and report of the amount due to the Board.

The Board replied with an affirmation of its counsel.

LAW AND APPLICATION

In an action to foreclose a mortgage, RPAPL § 1321 allows the court to assign a referee to compute the amount due to the plaintiff (Bd. of Directors of Hunt Club at Coram Homeowners Ass'n, Inc. v. Hebb, 72 AD3d 997, 999 [2nd Dept 2010] ). A referee's powers and duties cannot go beyond the scope of the order of reference ( seeCPLR 4311; First...