Meadowbrook Farms Homeowners Ass'n, Inc. v. JZG Res., Inc.

• Decision Date: 10 April 2013
• Citation: 963 N.Y.S.2d 300,2013 N.Y. Slip Op. 02381,105 A.D.3d 820
• Parties: MEADOWBROOK FARMS HOMEOWNERS ASSOCIATION, INC., respondent, v. JZG RESOURCES, INC., appellant.
• Court: New York Supreme Court — Appellate Division

105 A.D.3d 820

963 N.Y.S.2d 300

2013 N.Y. Slip Op. 02381

MEADOWBROOK FARMS HOMEOWNERS ASSOCIATION, INC., respondent,

v.JZG RESOURCES, INC., appellant.

Supreme Court, Appellate Division, Second Department, New York.

April 10, 2013.

Eric A. Sauter, Armonk, N.Y. (Alan D. Singer of counsel), for appellant.

Vergilis, Stenger, Roberts, Davis & Diamond, LLP, Wappingers Falls, N.Y. (Kenneth M. Stenger of counsel), for respondent.

RUTH C. BALKIN, J.P., PLUMMER E. LOTT, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.

In an action to recover damages for breach of contract and for a judgment declaring, inter alia, that the defendant is contractually obligated to pay the plaintiff assessments as the owner of 24 lots in a residential subdivision in Patterson, New York, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Putnam County (Nicolai, J.), dated August 16, 2011, as granted those branches of the plaintiff's motion which were for leave to reargue its opposition to the defendant's prior motion for summary judgment dismissing the complaint, which had been granted in a prior order of the same court dated February 24, 2011, and for leave to reargue its prior cross motion to dismiss certain affirmative defenses, which had been denied in the order dated February 24, 2011, and, upon reargument, vacated the determinations in the order dated February 24, 2011, granting that branch of the defendant's prior motion which was for summary judgment dismissing the complaint on the ground that it is preempted by the Martin Act and denying those branches of the plaintiff's prior cross motion which were to dismiss the affirmative defenses based on Martin Act preemption and lack of standing, and thereupon denied that branch of the defendant's prior motion which was for summary judgment dismissing the complaint on the ground that it is preempted by the Martin Act and, in effect, denied those branches of the defendant's prior motion which were for summary judgment dismissing the complaint as time-barred and barred by the plaintiff's bylaws and dismissing the third and fourth causes of action for lack of standing, and granted those branches of the plaintiff's prior cross motion which were to dismiss the affirmative defenses based on Martin Act preemption and lack of standing, and denied that branch of its cross motion which was to vacate a recorded lien and lis pendens.

ORDERED that the order dated August 16, 2011, is affirmed insofar as appealed from, with costs, and, upon searching the record, summary judgment is awarded to the plaintiff dismissing the affirmative defense based on the statute of limitations.

The Supreme Court providently exercised its discretion in granting that branch of the plaintiff's motion which was for leave to reargue ( seeCPLR 2221 [d]; Weiss v. Fire Extinguisher Servs. Co., Inc., 83 A.D.3d 822, 823, 921 N.Y.S.2d 105).

Upon reargument, the Supreme Court properly denied that branch of the defendant's prior motion which was for summary judgment dismissing the complaint on the ground that it is preempted by the Martin Act ( see General Business Law art 23–A). Since the plaintiff's common-law causes of action to recover damages for breach of contract and derivative declaratory judgment causes of action are not “predicated solely on a violation of the Martin Act or its implementing regulations,” they are not preempted by the Martin Act ( Assured Guar. [UK] Ltd. v. J.P. Morgan Inv. Mgt. Inc., 18 N.Y.3d 341, 353, 939 N.Y.S.2d 274, 962 N.E.2d 765;see Kerusa Co. LLC v. W10Z/515 Real Estate Ltd. Partnership, 12 N.Y.3d 236, 245–247, 879 N.Y.S.2d 17, 906 N.E.2d 1049;Caboara v. Babylon Cove Dev., LLC, 82 A.D.3d 1141, 1142–1143, 920 N.Y.S.2d 191;Board of Mgrs. of Marke Gardens Condominium v. 240/242 Franklin Ave., LLC, 71 A.D.3d 935, 936, 898 N.Y.S.2d 564;cf. Hamlet on Olde Oyster Bay Home Owners Assn., Inc. v. Holiday Org., Inc., 65 A.D.3d 1284, 1287, 887 N.Y.S.2d 125). Accordingly, upon reargument, the Supreme Court also properly granted that branch of the plaintiff's prior cross motion which was to dismiss the affirmative defense based on Martin Act preemption.

In addition, upon reargument, the Supreme Court properly, in effect, denied that branch of the defendant's prior motion which was for summary judgment...