| Yankee Lake Preserv. Assn., Inc. v Stein |
| 2009 NY Slip Op 10024 [68 AD3d 1603] |
| December 31, 2009 |
| Appellate Division, Third Department |
| Yankee Lake Preservation Association, Inc., Appellant, v JudithStein et al., Respondents, et al., Defendants. |
—[*1] Randall V. Coffill, Port Jervis, for Judith Stein, respondent. Mark Lewis Schulman, Monticello, for Gerald Decker and others, respondents.
Stein, J. Appeals (1) from an order of the Supreme Court (Sackett, J.), entered September 12,2008 in Sullivan County, which, among other things, granted certain defendants' motion forsummary judgment dismissing the complaint against them and imposed sanctions on plaintiff,and (2) from an order of said court, entered January 12, 2009, which denied plaintiff's motion torenew and/or reargue.
Plaintiff is a not-for-profit membership corporation which owns property in the Town ofMamakating, Sullivan County, allegedly including Yankee Lake, a 45-acre tract on its shorelineand an island in the lake. Plaintiff was created in 2000[FN1]and was organized, in part, to manage and protect property within the Yankee Lake communityand to provide for recreational use and enjoyment of the lake and its surrounding area. In 2002,plaintiff began assessing mandatory [*2]annual dues for all of itsmembers and, in 2004, amended its bylaws to make membership mandatory for all propertyowners with deeded rights to access Yankee Lake.
Defendants each own lots in the Yankee Lake community. Although their lots do not abutthe lake, their deeds contain rights to access the lake. Defendants purchased their properties priorto 2000 and have never been members of plaintiff. Plaintiff commenced this action againstdefendants seeking payment of dues for 2004, 2005 and 2006 after defendants refused to paysuch dues. Defendant Judith Stein, joined by defendants Gerald Decker, Denise Decker, CarstenHaupt and Deborah Haupt (hereinafter collectively referred to as defendants),[FN2]moved for summary judgment dismissing the complaint against them and counterclaimed forcosts, disbursements, sanctions and counsel fees. Supreme Court, among other things, granteddefendants' motion for summary judgment, dismissed the complaint against them and awardedsanctions against plaintiff pursuant to 22 NYCRR 130-1.1, including actual expenses reasonablyincurred and reasonable counsel fees.[FN3]Plaintiff's motion to reargue and/or renew that part of the order imposing sanctions was deniedby Supreme Court. Plaintiff appeals both orders.[FN4]
We affirm. Defendants met their initial burden of establishing their entitlement to judgmentas a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853[1985]) by proffering evidence that their deeds and chains of title do not contain restrictivecovenants requiring them to pay dues to any association and that they never expressly agreed topay dues to plaintiff. Thus, the burden shifted to plaintiff to raise a question of fact requiring atrial (see CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320, 324, 326-327[1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Friends ofAnimals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068 [1979]).
In response, plaintiff contends that defendants' purchase of their respective properties withthe knowledge that a private community association provided facilities and services forcommunity residents created an implied-in-fact contract requiring them to pay theirproportionate fees regardless of whether their membership in the association was mademandatory in a deeded covenant. Where, as here, there is no written contract between the parties,"a contract may be implied in fact where inferences may be drawn from the facts andcircumstances of the case and the intention of the parties as indicated by their conduct"(Matter of Boice, 226 AD2d 908, 910 [1996]; see Matter of Pache v AviationVolunteer Fire Co., 20 AD3d 731, 732-733 [2005], lv denied 6 NY3d 705 [2006]).Thus, an implied-in-fact contract to pay for services provided by a homeowners' association hasbeen found where the homeowners purchased their property with [*3]knowledge that the association provided such services and that allhomeowners within the community were assessed a share of the association's costs (seeSeaview Assn. of Fire Is. v Williams, 69 NY2d 987, 988-989 [1987]; Perkins vKapsokefalos, 57 AD3d 1189, 1192-1193 [2008], lv denied 12 NY3d 705 [2009]).
Here, however, plaintiff has failed to proffer any evidence to support its contention thatdefendants implicitly agreed to pay dues or that it otherwise has legal authority to mandatepayment of such dues. The evidence unequivocally established that, at the time each defendantpurchased his or her property, the organization(s) providing for the upkeep and protection ofYankee Lake sought contributions from residents only on a voluntary basis. For example, thefounding documents of plaintiff's predecessors did not provide for mandatory membership or formandatory dues for nonmembers. Further, Stein averred that she purchased her property onlyafter ascertaining that there was no mandatory association membership or dues obligationconnected with the property. Absent any proof that defendants were on notice of an obligation topay dues or that they implicitly agreed to pay dues to plaintiff or its predecessor(s) when theypurchased their property, Supreme Court properly granted defendants' motion dismissing thecomplaint.
Nor do we find that Supreme Court abused its discretion in awarding sanctions (seeNavin v Mosquera, 30 AD3d 883, 883-884 [2006]; First Deposit Natl. Bank v VanAllen, 277 AD2d 858, 860 [2000]), particularly in view of the evidence that plaintiff hadnotice of the legal infirmities of its position before commencing this action (see 22NYCRR 130-1.1 [c] [1], [3]; see generally First Deposit Natl. Bank v Van Allen, 277AD2d at 860; compare Matter of Breistol, 64 AD3d 1122, 1124 [2009]). Plaintiff'spurported reliance on a Town Court decision (Yankee Lake Preserv. Assn., Inc. v Stott,Just Ct, Town of Mamakating, Feb. 11, 2004, Matthews, J., case No. 02110140) is misplaced as,in that case—unlike here—the requirement of the dues payment to plaintiff'spredecessor in interest was contained within the defendants' deed.
The parties' remaining contentions have been examined and are either academic or withoutmerit.
Rose, J.P., Kavanagh, McCarthy and Garry, JJ., concur. Ordered that the orders are affirmed,with one bill of costs.
Footnote 1: Plaintiff's creation effected amerger between Yankee Lake Association, Inc. and Yankee Lake Preservation Alliance, Inc.
Footnote 2: The other named defendantswere not served with the motions at issue herein and have not participated in this appeal.
Footnote 3: Supreme Court also deniedplaintiff's motion for leave to amend the complaint and its cross motion for summary judgmenton the proposed amended complaint.
Footnote 4: Plaintiff has not raised anyarguments in its appellate brief pertaining to the denial of its motion and cross motion or to theorder denying its motion to reargue and/or renew. Accordingly, we deem such issues to beabandoned (see Caruso v Northeast Emergency Med. Assoc., P.C., 54 AD3d 524, 530[2008]).