| Perkins v Kapsokefalos |
| 2008 NY Slip Op 09881 [57 AD3d 1189] |
| December 18, 2008 |
| Appellate Division, Third Department |
| Emilie Perkins et al., Respondents, v Lisa Kapsokefalos et al.,Appellants. |
—[*1] Niles, Piller & Bracy, P.L.L.C., Plattsburgh (Evan F. Bracy of counsel), for respondents.
Spain, J. Appeals (1) from an order of the Supreme Court (Ryan, J.), entered July 3, 2007 inClinton County, which, among other things, denied defendants' motion for partial summary judgment,and (2) from an order of said court, entered August 1, 2007 in Clinton County, which awardedplaintiffs certain damages.
In 1999, defendants purchased a home in the townhouse community of Bluff Point in the Town ofPlattsburgh, Clinton County. Defendants purchased a second townhouse in 2002, which they later soldin 2005. Each townhouse is subject to various restrictive covenants that run with the land and appear indocuments recorded in the Clinton County Clerk's office. Plaintiff Bluff Point Townhouse OwnersAssociation, Inc. was incorporated as a not-for-profit corporation for the purposes of enforcingrestrictive covenants and collecting dues to cover the costs of maintaining common areas of thecommunity. At some point, the relationship between plaintiffs and defendants deteriorated anddefendants stopped paying monthly dues. Plaintiffs thereafter commenced this action seeking to enforcethe restrictive covenants that defendants had violated,[FN1]compel defendants to pay monthly dues owed to the Association, and permanently enjoin defendantsfrom violating any restrictive covenants. Defendants subsequently counterclaimed, asserting fraud,unlawful discrimination, trespass, interference of the right to quiet enjoyment, and violation of therestrictive covenant prohibiting the construction of fences. Thereafter, defendants moved for partialsummary judgment seeking dismissal of the portion of plaintiffs' complaint that sought payment of duesand severing the action as to the balance of the relief demanded. Plaintiffs then moved for summaryjudgment seeking dismissal of defendants' counterclaims.
Supreme Court granted plaintiffs' motion dismissing defendants' counterclaims and denieddefendants' motion. Additionally, utilizing its authority to search the record on a summary judgmentmotion (see CPLR 3212 [b]), the court granted judgment in favor of plaintiffs on their cause ofaction seeking monthly dues, finding the existence of an implied-in-fact contract. However, the courtconcluded that the motion papers were unclear as to the number of months that defendants had beendelinquent in their payments and ordered a trial on the issue of damages. After a pretrial conference andoral argument, however, the court found that no issues of fact existed as to the amount of dues owed bydefendants and ordered them to pay damages of $5,200. Defendants now appeal from both the orderissued on the parties' summary judgment motions and from the order specifying plaintiffs'damages.[FN2]We affirm.
Initially, we reject defendants' contention that Supreme Court erred in searching the record andgranting partial summary judgment to plaintiffs. It is well settled that "a court has the authority to searchthe record and grant summary judgment to a nonmoving party" (WFR Assoc. v Memorial Hosp., 14 AD3d 840, 841 [2005];see CPLR 3212 [b]; Whitman RealtyGroup, Inc. v Galano, 52 AD3d 505, 506 [2008]; Doin v Bluff Point Golf & CountryClub, 262 AD2d 842, 843 [1999], lv denied, 94 NY2d 753 [1999] ). However, suchauthority "only [applies] to a cause of action or issue that is the subject of the motions before the court"(Dunham v Hilco Constr. Co., 89 NY2d 425, 430 [1996]; see Herron v Essex Ins. Co., 34 AD3d913, 915 [2006]).
Here, defendants contend that their motion for partial summary judgment argued only that norestrictive covenant required defendants to pay dues to the Association. Thus, defendants assert, giventhe basis of their motion and plaintiffs' failure to allege implied-in-fact contract as a basis for relief eitherin their complaint or motion for summary judgment, the court was precluded from searching the recordand granting summary judgment to plaintiffs based on that theory. However, in their motion for partialsummary judgment, defendants broadly assert that "no genuine issue of material fact [exists] regardingthe lack of any legal requirement that the defendants pay dues and/or fees for the 'propermaintenance and repair of commons areas' " (emphasis added), and further contend that this "prong" ofplaintiffs' complaint should be dismissed. In our view, this broad request for relief enabled SupremeCourt to search the record to determine whether any cognizable legal theory requireddefendants to pay dues to the [*2]Association, including whether animplied-in-fact contract existed that imposed a legal requirement on townhouse owners to pay aproportionate share of the costs of maintaining shared areas (see Seaview Assn. of Fire Is. vWilliams, 69 NY2d 987, 989 [1987]).
Additionally, we are unpersuaded by defendants' assertion that plaintiffs failed to proffer sufficientevidence to sustain a finding of an implied-in-fact contract. "Where there is knowledge that a privatecommunity homeowners' association provides facilities and services for the benefit of communityresidents, the purchase of property [in that community] may manifest acceptance of conditions ofownership, among them payment for the facilities and services offered. The resulting implied-in-factcontract includes the obligation to pay a proportionate share of the full cost of maintaining those facilitiesand services" (id. at 989; see Sea Gate Assn. v Fleischer, 211 NYS2d 767, 781[1960]).
Here defendant Lisa Kapsokefalos's testimony illustrates that she possessed the requisiteknowledge that the Association provided services for the benefit of Bluff Point residents, whichrequired the payment of monthly dues (see Seaview Assn. of Fire Is. v Williams, 69 NY2d at989). Kapsokefalos testified that prior to purchasing her family's first townhouse, she was aware of theexistence of the Association. She also testified that she was aware that the Association collectedmonthly dues to cover the cost of trash removal and later learned that the dues also covered chimneycleaning and lawn maintenance. Moreover, Kapsokefalos admitted that she benefitted from theseservices and, at least a few times per year, she and her family used the easement adjoining theirproperty to access the beach as well as the beach itself. On this evidence, we hold that Supreme Courtproperly granted judgment in favor of plaintiffs (see id. at 989; Estate Ct., LLC v Schnall, 49 AD3d1076, 1078 [2008]).
Lastly, we are unpersuaded by defendants' assertion that by failing to hold a trial, Supreme Courterred in its order of damages. After a pretrial conference and oral argument, the court found that a trialwas not necessary, as plaintiffs had proffered an itemized record detailing the specific months thatdefendants had failed to pay dues. Indeed, it is undisputed that defendants paid dues on their first BluffPoint townhouse beginning in April 2000, they stopped paying dues on that townhouse inapproximately October 2002, and defendants never paid dues on their second townhouse, which theypurchased in September 2002. Moreover, defendants do not dispute the monthly amount charged bythe Association. Inasmuch as "[a] hearing of the damages question is necessary only when damages areunliquidated" (Siegel, Practice Commentaries, McKinney's Cons Law of NY, Book 7B, CPLRC3212:26, at 34), based on the existing record, the court acted properly.
Mercure, J.P., Rose, Kane and Stein, JJ., concur. Ordered that the orders are affirmed, with costs.
Footnote 1: Specifically, plaintiffs alleged thatdefendants posted signs in the windows of their townhouse, failed to landscape the exterior of theirtownhouse, erected a partition on the property, and installed an exterior television antenna, all inviolation of restrictive covenants prohibiting same.
Footnote 2: By failing to address SupremeCourt's dismissal of their counterclaims in their brief, defendants have abandoned those claims (see Allen v Telergy Network Servs., Inc.,52 AD3d 1094, 1096 [2008]; Lamphear v State of New York, 91 AD2d 791, 791[1982]).