Rosenbaum v. BOULDER RIDGE HOMEOWNERS ASSOCIATION, INC.

• Court: New York Supreme Court — Appellate Division
• Citation: Rosenbaum v. BOULDER RIDGE HOMEOWNERS ASSOCIATION, INC., 276 A.D.2d 615, 714 N.Y.S.2d 318 (N.Y. App. Div. 2000)
• Decision Date: 16 October 2000
• Parties: HAROLD ROSENBAUM, Appellant,<BR>v.<BR>BOULDER RIDGE HOMEOWNERS ASSOCIATION, INC., et al., Defendants, and<BR>SAMUEL GINSBURG et al., Respondents.

276 A.D.2d 615

714 N.Y.S.2d 318

HAROLD ROSENBAUM, Appellant,

v. BOULDER RIDGE HOMEOWNERS ASSOCIATION, INC., et al., Defendants, andSAMUEL GINSBURG et al., Respondents.

Decided October 16, 2000.

Ritter, J.P., Sullivan, Krausman and Goldstein, JJ., concur.

Ordered that the order is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.

The Supreme Court properly granted summary judgment to the defendant Town of Greenburgh. The plaintiff's action was time-barred insofar as it was asserted against the Town, as it was commenced more than one year and 90 days after the Town issued a certificate of occupancy for the residence at issue (see, General Municipal Law § 50-i; Greifenberger v Pav, 225 AD2d 731; Merritt v Hooshang Constr., 216 AD2d 542; Pleasant Ridge Townhouses Homeowners' Assn. v T & D Constr. Corp., 181 AD2d 871, 872). Under the circumstances of this case, the Town was not estopped from asserting a defense based on the Statute of Limitations (see, Safarowic v Dinozzi Bldg. Corp., 206 AD2d 356, 357; Okie v Village of Hamburg, 196 AD2d 228).

The Supreme Court also properly modified an order of the same court, dated December 16, 1998, by providing that those branches of the prior motion of the defendants Samuel Ginsburg and Martin Ginsburg individually which were for summary judgment dismissing the complaint insofar as asserted against them were granted. After these defendants made out a prima facie case for summary judgment, the plaintiff failed to raise triable issues as to whether either of these defendants knowingly made false representations concerning the premises to him, an essential element of his claim for fraud (see, C.P.J. Inc. v 234 High Seas Rest. Corp., 260 AD2d 524, 525).

Upon granting reargument, the Supreme Court also properly adhered to its determination in its order dated December 16, 1998, granting summary judgment to Ginsburg &...