| Stein v Garfield Regency Condominium |
| 2009 NY Slip Op 06531 [65 AD3d 1126] |
| September 15, 2009 |
| Appellate Division, Second Department |
| Andrew Stein et al., Respondents, v Garfield RegencyCondominium, Appellant, et al., Defendants. |
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In an action, inter alia, for a declaratory judgment and injunctive relief, the defendantGarfield Regency Condominium appeals from so much of an order of the Supreme Court, KingsCounty (Schneier, J.), dated February 8, 2008, as denied that branch of the defendants' motionwhich was pursuant to CPLR 3211 (a) to dismiss the complaint insofar as asserted against it andgranted the plaintiffs' cross motion for leave to amend the complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
The CPLR does not prescribe a specific limitations period for declaratory judgment actions.Rather, the applicable statute of limitations for such an action depends on the underlying claimand the "nature of the relief" sought (Solnick v Whalen, 49 NY2d 224, 229 [1980];see Vigilant Ins. Co. of Am. v Housing Auth. of City of El Paso, Tex., 87 NY2d 36,40-41 [1995]). If "the rights of the parties sought to be stabilized in the action for declaratoryrelief are, or have been, open to resolution through a form of proceeding for which a specificlimitation period is statutorily provided, then that period limits the time for commencement ofthe declaratory judgment action" (Solnick v Whalen, 49 NY2d at 229-230; seeVigilant Ins. Co. of Am. v Housing Auth. of City of El Paso, Tex., 87 NY2d at 41; P & N Tiffany Props., Inc. v Village ofTuckahoe, 33 AD3d 61, 63 [2006]; Matter of Jones v Amicone, 27 AD3d 465, 469 [2006]). However,if "no other form of proceeding exists for the resolution of the claims," then the six-year catch-allstatute of limitations set forth in CPLR 213 (1) governs (Solnick v Whalen, 49 NY2d at230; see Vigilant Ins. Co. of Am. v Housing Auth. of City of El Paso, Tex., 87 NY2d at41; New York City Health & Hosps. Corp. v McBarnette, 84 NY2d 194, 200-201[1994]; Martin Goldman, LLC vYonkers Indus. Dev. Agency, 12 AD3d 646, 647 [2004]).
Here, the plaintiffs, individual condominium owners in the defendant, Garfield RegencyCondominium (hereinafter Garfield), sought, inter alia, a judgment declaring that pursuant to adeclaration filed in 1986 (hereinafter the 1986 declaration), the roof area above their respectiverear top floor condominium units was for each plaintiff's "exclusive use and enjoyment," thatsuch roof area was a limited common element (hereinafter LCE) of each rear unit, and that anamended [*2]declaration filed in 2006 was void. Further, inseeking injunctive relief, the plaintiffs sought to prohibit Garfield from installing any permanentor temporary structures in their rear roof areas and to direct Garfield to approve their proposedinstallation of new rear roof decks. Notably, a justiciable controversy did not exist regarding themeaning of the 1986 declaration with respect to the plaintiffs' rights to the roof area above theirtop floor rear units until May 2005, which is when Garfield first claimed that the plaintiffs didnot have the exclusive right to use and enjoy the roof area above their respective rear top floorunits and that the roof area was not an LCE to each rear unit. Accordingly, regardless of whenthe 1986 declaration was originally filed, the plaintiffs' claim did not accrue until May 2005(see Vigilant Ins. Co. of Am. v Housing Auth. of El Paso, Tex., 87 NY2d at 44; seealso Employers' Fire Ins. Co. v Klemons, 229 AD2d 513, 514 [1996]). Further, since theplaintiffs' claims for declaratory and injunctive relief are dependent on the construction of the1986 declaration and are not "open to resolution through a form of proceeding for which aspecific limitation period is statutorily provided," the six-year statute of limitations set forth inCPLR 213 (1) applies (Solnick v Whalen, 49 NY2d at 229-230; see Vigilant Ins. Co.of Am. v Housing Auth. of City of El Paso, Tex., 87 NY2d at 41; P & N Tiffany Props.,Inc. v Village of Tuckahoe, 33 AD3d at 63; Matter of Jones v Amicone, 27 AD3d at470; Martin Goldman, LLC v Yonkers Indus. Dev. Agency, 12 AD3d at 648; Rahabiv Morrison, 81 AD2d 434, 439 [1981]). Since the plaintiffs commenced this action inJanuary 2007, which is less than six years after the dispute first arose, the action is timely(see CPLR 213 [1]). Accordingly, the Supreme Court properly denied that branch of thedefendants' motion which was to dismiss the complaint insofar as asserted against Garfield astime-barred pursuant to CPLR 3211 (a) (5).
A motion to dismiss a complaint based on documentary evidence "may be appropriatelygranted only where the documentary evidence utterly refutes plaintiff's factual allegations,conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. ofN.Y., 98 NY2d 314, 326 [2002]; see Mazur Bros. Realty, LLC v State of New York, 59 AD3d 401[2009]; Troccoli v Zarabi, 57 AD3d971 [2008]). The documentary evidence submitted by the defendant did not utterly refutethe plaintiffs' allegations, and thus, did not conclusively establish a defense as a matter of law.Accordingly, the Supreme Court properly denied that branch of the defendants' motion whichwas to dismiss the complaint insofar as asserted against Garfield based upon documentaryevidence (see CPLR 3211 [a] [1]).
Turning to the plaintiffs' cross motion, "[l]eave to amend shall be freely given absentprejudice or surprise" (Rosicki, Rosicki& Assoc., P.C. v Cochems, 59 AD3d 512, 514 [2009]; see CPLR 3025 [b]; Mackenzie v Croce, 54 AD3d 825[2008]; Kuslansky v Kuslansky,Robbins, Stechel & Cunningham, LLP, 50 AD3d 1101 [2008]). The Supreme Courtprovidently exercised its discretion in granting the plaintiffs' cross motion for leave to amendtheir complaint, since the proposed amendments were neither "palpably insufficient" nor"patently devoid of merit on [their] face" (Rosicki, Rosicki & Assoc., P.C. v Cochems,59 AD3d at 514; see Mackenzie v Croce, 54 AD3d at 826).
Garfield's remaining contentions are without merit. Spolzino, J.P., Santucci, Belen and Lott,JJ., concur.