Houston v. Bd. of Managers Deer Run Condo. Ass'n
| Decision Date | 27 June 2018 |
| Docket Number | Index No. 4449/15,2015–11704 |
| Citation | 162 A.D.3d 1026,81 N.Y.S.3d 206 |
| Parties | In the Matter of Leonard W. HOUSTON, appellant, v. BOARD OF MANAGERS DEER RUN CONDOMINIUM ASSOCIATION, etc., respondent. |
| Court | New York Supreme Court — Appellate Division |
Leonard W. Houston, Middletown, NY, appellant pro se.
Kalter, Kaplan, Zeiger & Forman, Woodbourne, N.Y. (Terry S. Forman of counsel), for respondent.
RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, HECTOR D. LASALLE, JJ.
DECISION & ORDER
In a proceeding for injunctive and declaratory relief, the petitioner appeals from an order of the Supreme Court, Orange County (Elaine Slobod, J.), dated October 27, 2015. The order denied the petitioner's motion to enforce a stipulation of settlement dated July 17, 2015.
ORDERED that on the Court's own motion, the proceeding is converted to an action for injunctive and declaratory relief, the notice of petition is deemed to be the summons, and the petition is deemed to be the complaint (see CPLR 103[c] ); and it is further,
ORDERED that the order is affirmed, with costs.
Leonard W. Houston is the owner of a condominium unit in a complex governed by the respondent, Board of Managers Deer Run Condominium Association (hereinafter the Board). In June 2015, Leonard W. Houston commenced this proceeding seeking, inter alia, an injunction directing the Board to make certain repairs. The parties entered into a stipulation of settlement dated July 17, 2015, which was so-ordered by the Supreme Court. The stipulation provided, inter alia, that the Board was to have Houston's driveway repaved, and that the work would "be performed in a workman like manner and in accordance with standard practices." Thereafter, Houston moved to enforce the stipulation with respect to the directive to repave the driveway, asserting that, while the driveway was repaved by nonparty Mead Seal Coating & Parking Lot Maintenance, Inc. (hereinafter Mead Seal), the repaving work was not performed in a "workman like manner and in accordance with standard practices." In an order dated October 27, 2015, the court denied Houston's motion. Houston appeals.
We note that although Houston commenced this matter as a special proceeding, the relief that he sought is cognizable only in an action (see CPLR 103[b] ; Matter of Chase v. Wells Fargo Bank, N.A. , 135 A.D.3d 751, 752, 24 N.Y.S.3d 673 ). Accordingly, we exercise our authority pursuant to CPLR 103(c) to convert the proceeding into an action for injunctive and declaratory relief, and we deem the notice of petition to be the summons and the petition to be the complaint (see Matter of Chase v. Wells Fargo Bank, N.A. , 135 A.D.3d at 753, 24 N.Y.S.3d...
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