| Board of Mgrs. of Bond Parc Condominium v Broxmeyer |
| 2009 NY Slip Op 04177 [62 AD3d 925] |
| May 26, 2009 |
| Appellate Division, Second Department |
| Board of Managers of Bond Parc Condominium,Respondent, v Lorraine Broxmeyer et al., Appellants, et al.,Defendants. |
—[*1] Marc H. Schneider, P.C., Garden City, N.Y. (Ryan D. Mitola of counsel), forrespondent.
In an action, inter alia, for a judgment declaring that the defendants Lorraine Broxmeyer andTerence Eckstein are required to provide the plaintiff with access to their condominium unit toallow the plaintiff to install windows on the wall located in the terrace appurtenant to that unit,and to compel those defendants to provide such access, the defendants Lorraine Broxmeyer andTerence Eckstein appeal (1), as limited by their brief, from so much of an order of the SupremeCourt, Nassau County (Adams, J.), dated April 10, 2008, as granted that branch of the plaintiff'smotion which was for an injunction compelling them to provide the plaintiff with access to theircondominium unit for the purpose of installing windows in wall of the terrace appurtenant totheir unit, (2), as limited by their brief, from so much of an order of the same court enteredAugust 20, 2008, as denied that branch of their motion as was for leave to renew their oppositionto that branch of the plaintiff's motion which was for an injunction, and (3) from a judgment ofthe same court entered August 25, 2008, which, upon so much of the order dated April 10, 2008,as granted the plaintiff's application for a judgment declaring that they were required to providethe plaintiff with access to their condominium unit, among other things, is in favor of theplaintiff and against them compelling them to provide the plaintiff with access to theircondominium unit for the purpose of installing windows in the wall of the terrace appurtenant totheir unit.
Ordered that the appeals from the orders are dismissed, as the portions of the orders appealedfrom were superseded by the judgment; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
In October 1984 the sponsor of the Bond Parc Condominium (hereinafter Bond Parc),located in the Village of Great Neck Plaza, installed windows on the terrace walls of fourterraces appurtenant to each of the four penthouse units of the building constituting the BondParc complex [*2]to prevent pigeon excrement and water damageto the penthouse units and to the units directly below the penthouse units. In October 2004 thedefendant Lorraine Broxmeyer purchased the subject condominium unit, penthouse four(hereinafter PH4), in which her son, the defendant Terence Eckstein (hereinafter together thedefendants) has since resided. In 2006 the plaintiff undertook a restoration and renovationproject to the building's faÇade, which necessitated removal of the existing terracewindows and, upon completion of the faÇade work, installation of new windows in thefour terraces. The owners of all four penthouse units allowed removal of the original windows inthe terraces appurtenant to their respective units, and thereafter, the owners of penthouse unitsone, two, and three allowed installation of the new windows. However, the defendants refused toallow the installation of the new windows, which prompted the plaintiff to commence this actionseeking, inter alia, an injunction compelling the defendants to provide it with access to theterrace appurtenant to PH4 to install the new windows. In an order dated April 10, 2008, enteredafter joinder of issue but before any discovery had been conducted, the Supreme Court, inter alia,granted that relief to the plaintiff. The defendants thereafter moved, inter alia, for leave to renewtheir opposition to that branch of the plaintiff's motion, which the court denied in an orderentered August 20, 2008. A judgment was thereafter entered upon, and consistent with, the orderdated April 10, 2008. The defendants appeal from the two orders, as well as the judgment.
The Supreme Court properly awarded judgment to the plaintiff compelling the defendants toprovide it with access to the terrace appurtenant to PH4 in order to install windows in the terracewall (see Doe v Axelrod, 73 NY2d 748 [1988]; Omakaze Sushi Rest., Inc. v Ngan Kam Lee, 57 AD3d 497[2008]). The Bond Parc governing documents clearly define terraces appurtenant to units ascommon elements, and authorize the plaintiff to repair and maintain them. Specifically, article Vof the Bond Parc declaration expressly defines terraces appurtenant to units as common elementsthat are "irrevocably restricted in use to specified Unit Owners, subject to the right of the Boardof Managers to enter upon any restricted area for maintenance, repair or improvement of a Unitor common element and subject to the rules of the Board of Managers." Further, article III,section 6, of the Bond Parc bylaws recites that "irrevocably restricted common elements shall bemaintained and repaired by the Unit Owner to whom such common element is restricted in use. . .The [plaintiff] Board of Managers and its agents, employees and contractorsshall have a right of access to any Unit and to all portions of the common elements for thepurpose of carrying out any of its obligations under these By-Laws or the Declaration of theCondominium." Under the circumstances, the defendants' refusal to provide the plaintiff and itscontractor with access to the terrace appurtenant to their unit to install windows in the wallthereon violates the Bond Parc governing documents.
The Supreme Court properly denied that branch of the defendants' motion which was forleave to renew, as they failed to demonstrate a reasonable justification for failing to submit anaffidavit from an expert architect in opposition to the plaintiff's original motion (seeCPLR 2221 [e]; Sobin v Tylutki, 59AD3d 701 [2009]; Boakye-Yiadomv Roosevelt Union Free School Dist., 57 AD3d 929 [2008]).
The defendants' contentions that the plaintiff failed to obtain a building permit prior toinstalling the terrace windows during the 1980s, and that the removal and reinstallation workdesired by the plaintiff would violate the applicable building code, were raised for the first timein connection with that branch of their motion which was for leave to renew their opposition tothe plaintiff's motion for an injunction. The Supreme Court properly denied that branch of thedefendants' motion, since the defendants failed to provide a reasonable excuse for their failure topresent these facts in opposition to the plaintiff's motion for an injunction (see CPLR2221 [e]).
Contrary to the plaintiff's contention, the imposition of sanctions against the defendants isnot warranted (cf. 22 NYCRR 130-1.1 [c] [1]).
The defendants' remaining contentions are without merit. Prudenti, P.J., Miller, Eng andBelen, JJ., concur.