| Board of Mgrs. of 60 Greene Condominium v Acacia SoHo,LLC |
| 2009 NY Slip Op 04937 [63 AD3d 516] |
| June 16, 2009 |
| Appellate Division, First Department |
| Board of Managers of the 60 Greene Condominium, on Behalf ofAll Unit Owners, Appellant-Respondent, v Acacia SoHo, LLC,Respondent-Appellant. |
—[*1] Belkin Burden Wenig & Goldman, LLP, New York (Magda L. Cruz of counsel), forrespondent-appellant.
Order, Supreme Court, New York County (Jane S. Solomon, J.), entered February 28, 2008,which denied the parties' respective motions for summary judgment and granted that branch ofplaintiff's cross motion as sought leave to amend the complaint, unanimously affirmed, withoutcosts.
Plaintiff is a residential condominium; defendant corporate unit owner purchased from thesponsor the right to develop a roof-top unit in formerly common space. In a first amendment tothe offering plan, the sponsor indicated its intention to develop the penthouse and agreed that,within 60 days after obtaining city approval for the construction, it would amend the pertinentdeclaration so as to reflect the reallocation of common shares resulting from the addition of thepenthouse to the building. After the sponsor sold its rights to the roof to defendant, it filed a fifthamendment disclosing the sale and stating that the common charges would be reallocated upon,inter alia, the City's issuance of a temporary certificate of occupancy for the penthouse.Separately, in a so-called contribution agreement, defendant agreed to undertake roof work forwhich plaintiff agreed to make a cash payment to defendant.
Supreme Court correctly found an issue of fact as to defendant's liability for commoncharges that accrued prior to the issuance of the temporary certificate of occupancy. The firstamendment contrasts with the fifth amendment in that only the latter has language making thereallocation of common interests self-effecting and automatic. A later agreement, however,specified that the obligation outlined in the first amendment belonged to the sponsor or itsdesignee, and the fifth amendment named defendant as the sponsor's designee. Plaintiff arguesthat the fifth amendment merely determines when defendant became liable for the commoncharges, but that the first amendment still controls as to which common charges are owed, whiledefendant argues that the 60-day provision in the first amendment merely refers to the sponsor'sobligation to amend the declaration. Because, taken together with the various agreements anddeclarations, the offering plan as amended can be parsed in two different, equally logical ways(see Schechter Assoc. v Major League Baseball Players Assn., 256 AD2d 97, 97 [1998]),summary judgment was properly denied to both sides on this cause of action. Defendant's [*2]argument that the claims are time-barred is without merit.
Both sides agree that defendant's counterclaim based on the contribution agreement shouldgo to trial. Plaintiff's attempt to broaden the scope of the court's inquiry on this issue is withoutmerit. The agreement specifies that plaintiff's payment is in "consideration of" defendant's"agreement to include certain waterproofing protection" to the penthouse floor, and there is noindication that the payment was to be in consideration of any other work.
The amended complaint (which is absent from the record, apparently due to defendant'scounsel's representation to plaintiff's counsel that defendant's appeal would not be pursued) wasaccompanied by evidentiary material that included a detailed affidavit from plaintiff'sengineering expert. We decline to disturb Supreme Court's exercise of discretion in grantingleave to serve the amended complaint. The action is still in an early stage (see Kocak vEgert, 280 AD2d 335, 336 [2001]), and there is no "indication that the defendant has beenhindered in the preparation of [its] case or has been prevented from taking some measure insupport of [its] position" (see Cherebinv Empress Ambulance Serv., Inc., 43 AD3d 364, 365 [2007] [internal quotation marksomitted]). Concur—Saxe, J.P., Sweeny, Moskowitz, Acosta and Richter, JJ. [See2008 NY Slip Op 30600(U).]