| Goodnow Flow Assn. Inc. v Graves |
| 2016 NY Slip Op 00416 [135 AD3d 1228] |
| January 21, 2016 |
| Appellate Division, Third Department |
[*1]
| Goodnow Flow Association Inc., Respondent, v JohnA. Graves, Appellant. |
Stanclift, Ludemann, Silvestri & McMorris, PC, Glens Falls (John M. Silvestriof counsel), for appellant.
Walsh & Walsh, LLP, Saratoga Springs (Joseph M. Walsh of counsel), forrespondent.
Garry, J.P. Appeal from an order of the Supreme Court (Buchanan, J.), enteredDecember 3, 2014 in Essex County, which, among other things, granted plaintiff'smotion for summary judgment.
Goodnow Flow is a lake located in Essex County that was created by construction ofa dam. The surrounding property was subdivided into lots and sold. In 1957, plaintiffwas incorporated as an nonprofit organization to acquire and lease lands for therecreational use of its members, who own the lots surrounding and abutting the lake.Plaintiff owns the lake bottom and the dam and spillway and maintains those facilitiesand the lake's water level. Plaintiff also engages in various other activities on behalf of itsmembers, including stocking the lake with fish, leasing nearby lands, and maintaining atrail system on those lands. Defendant's parents purchased a lot adjoining the GoodnowFlow in 1958 and paid annual dues to plaintiff throughout the period of their ownership.Defendant obtained a partial interest following the death of his father in 1984; heacquired sole ownership in 2012. Thereafter, he refused to pay the annual dues. Plaintiffcommenced this action seeking payment of the dues and late charges. Defendantcounterclaimed for damages based upon allegedly negligent work performed upon aroadside ditch that had caused flooding upon his property. Plaintiff moved for summaryjudgment, which Supreme Court granted, awarding plaintiff damages and dismissing thecounterclaim.[FN1]Defendant appeals, and we affirm.
[*2] Defendant primarily argues that, because some of plaintiff's expenditures—such asthe leasing of additional lands for members' hunting and recreationalactivities—do not provide a specific benefit to his property, it was error forSupreme Court to find that he is obligated to pay his assessed share of annualdues.[FN2] Wedisagree. It is well-established law that when an owner has acquired property with"knowledge that a private community homeowners' association provides facilities andservices for the benefit of community residents, the purchase of property there maymanifest acceptance of conditions of ownership, among them payment for the facilitiesand services offered" (Seaview Assn. of Fire Is. v Williams, 69 NY2d 987, 989[1987]; see Yankee LakePreserv. Assn., Inc. v Stein, 68 AD3d 1603, 1604 [2009], lv denied 15NY3d 706 [2010]). In such cases, an implied contract arises under which the owner isobligated "to pay a proportionate share of the full cost of maintaining those facilities andservices, not merely the reasonable value of those actually used by [the owner]"(Seaview Assn. of Fire Is. v Williams, 69 NY2d at 989). Moreover, absent ashowing of bad faith or breach of fiduciary obligations, courts will not substitute theirjudgment for that of a community or homeowners' association with respect to the wisdomof their expenditures (see Matter of Levandusky v One Fifth Ave. Apt. Corp., 75NY2d 530, 538 [1990]; BluffPoint Townhouse Owners Assn., Inc. v Kapsokefalos, 129 AD3d 1267, 1268[2015], lv denied 26 NY3d 910 [2015]).
Plaintiff met its prima facie burden of entitlement to summary judgment bysubmitting, among other things, the affidavit of its president in which he recounted thehistory of plaintiff and averred that it has been in existence since at least 1957, wellbefore defendant obtained sole title to his lot in 2012. The bylaws that were in effect atthe time that defendant obtained title were also submitted; they required members to paydues and listed among plaintiff's purposes "[t]o provide outdoor recreation for membersof [plaintiff], their families and their guests" and "[t]o lease land adjacent to theGoodnow Flow for hunting, fishing and other recreational purposes." Plaintiff furthersubmitted photographs of signage posted at conspicuous locations around the lake, suchas a parking lot and a boat launch, which indicated that the lake and amenities were forthe exclusive use of plaintiff's members. In opposition, defendant did not dispute that hehad knowledge of plaintiff's existence or activities on behalf of its members at the timethat he took title to the lot, but instead merely contested certain expenditures by plaintiffthat he deemed imprudent and "unnecessary" because, in his view, they offered nobenefit to his property. Thus, as defendant failed to raise a triable issue of fact, we findno error in Supreme Court's holding that an implied contract existed between the parties(see Seaview Assn. of Fire Is. v Williams, 69 NY2d at 989; Perkins vKapsokefalos, 57 AD3d at 1192; compare Yankee Lake Preserv. Assn., Inc. vStein, 68 AD3d at 1604-1605).
[*3] Finally, defendant's argument that he should have been allowed to conduct additionaldiscovery prior to Supreme Court ruling on the motion is unpreserved (see Hush v Taylor, 84 AD3d1532, 1533 [2011]).
Rose, Lynch, Devine and Clark, JJ., concur. Ordered that the order is affirmed, withcosts.
Footnote 1:Defendant's notice ofappeal states that he is appealing from the entirety of Supreme Court's order. However, ashe has raised no arguments with respect to the dismissal of his counterclaim in his brief,we deem any claims with respect thereto to be abandoned (see Perkins v Kapsokefalos, 57AD3d 1189, 1191 n 2 [2008], lv denied 12 NY3d 705 [2009]).
Footnote 2:To the extent thatdefendant also argues that plaintiff does not constitute a homeowners' association, but,rather, a voluntary fishing and hunting club, such argument is unpreserved for our review(see Science Applications Intl.Corp. v Environmental Risk Solutions, LLC, 132 AD3d 1161, 1168-1169[2015]). Defendant did not raise this argument before Supreme Court, and, in fact,consistently referred to plaintiff as a homeowners' association in his opposition papers.