Brookview Homeowners' Ass'n, Inc. v. Mark IV Const. Co., Inc., 1
| Decision Date | 26 December 1991 |
| Docket Number | No. 1,1 |
| Parties | BROOKVIEW HOMEOWNERS' ASSOCIATION, INC., Appellant, v. MARK IV CONSTRUCTION CO., INC. and Martex Management Company, Respondents. Appeal |
| Court | New York Supreme Court — Appellate Division |
Althoff, Zoghlin, Bansbach & Asandrov, P.C. by Mindy Zoghlin, Rochester, for appellant.
Woods, Oviatt, Gilman, Sturman & Clarke by Percival Oviatt, Jr., Rochester, for respondents.
Before DOERR, J.P., and BOOMER, PINE, BALIO and DAVIS, JJ.
Supreme Court properly concluded that the responsibility of defendant Mark IV Construction Co., Inc. to pay maintenance assessments is limited by section 5.04 of the Declaration Establishing Brookview Homeowners' Association, Inc. to any deficit in plaintiff Association's operating expenses. Supreme Court abused its discretion, however, in granting plaintiff's motion to renew, as plaintiff's motion was predicated upon a legal theory not advanced in its original motion for partial summary judgment or even in its complaint (see, Foley v. Roche, 68 A.D.2d 558, 568, 418 N.Y.S.2d 588; lv. denied 56 N.Y.2d 507, 453 N.Y.S.2d 1025, 438 N.E.2d 1147). Moreover, plaintiff failed to provide an explanation for its failure to produce evidence of a deficiency in its reserves at the time of the original motion (see, Huttner v. McDaid, 151 A.D.2d 547, 543 N.Y.S.2d 916).
Order unanimously affirmed without costs.
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