| Country Pointe at Dix Hills Home Owners Assn., Inc. v BeechwoodOrg. |
| 2011 NY Slip Op 00345 [80 AD3d 643] |
| January 18, 2011 |
| Appellate Division, Second Department |
| Country Pointe at Dix Hills Home Owners Association, Inc.,Appellant-Respondent, v Beechwood Organization et al., Respondents-Appellants, andS.B.J. Associates, LLC, et al., Respondents. |
—[*1] Bauman Katz & Grill, LLP, New York, N.Y. (Daniel Katz and Gerard Romski of counsel),for respondents-appellants. Rosenberg, Calica & Birney, LLP, Garden City, N.Y. (Ronald J. Rosenberg, William J.Birney, and Diana G. Attner of counsel), for respondents S.B.J. Associates, LLC, Greens at HalfHollow, LLC, Jobco Realty and Development, LLC, Greens Golf Club, LLC, KJV, LLC, SteveKaplan, Neal S. Kaplan, Lee Kaplan, and Sherry Stolzenberg. Sferrazza & Keenan, PLLC, Melville, N.Y. (Joseph Sferrazza and Sarah M. Keenan ofcounsel), for respondents Alvin Benjamin, Benjamin Development Co., Inc., and BenjaminMillennium Group, LLC.
In an action, inter alia, to recover damages for breach of contract and for a judgmentdeclaring, among other things, (a) that the membership and club access practices of a golf andcountry club owned by the defendant Greens Golf Club, LLC, unlawfully discriminate againstowners of homes at Country Pointe at Dix Hills and are invalid to that extent, (b) that themembership and club access practices of the golf and country club violate the rights secured tothose homeowners, their family members, and residents of those homes pursuant to thegoverning documents of the plaintiff Country Pointe at Dix Hills Home Owners Association,Inc., the contracts between those homeowners and the sponsor of Country Pointe at Dix Hills,and New York law, (c) that the golf and country club may not be owned by the defendant GreensGolf Club, LLC, and (d) that each individual homeowner at Country Pointe at Dix Hills isentitled to opt out of and back into [*2]his or her mandatorysocial membership in the subject golf and country club, the plaintiff appeals (1), as limited by itsnotice of appeal and brief, from stated portions of an order of the Supreme Court, Suffolk County(Emerson, J.), dated September 4, 2008, which, inter alia, granted those branches of the motionof the defendants Beechwood Carmen Building Corp., Michael Dubb, Leslie A. Lerner, CarolBosco, Richard Rosenberg, Ted Jung, and Michael Leeds pursuant to CPLR 3211 (a) (1) and (7)which were to dismiss so much of the amended verified complaint as alleged that thosedefendants breached the offering plan for the Country Pointe at Dix Hills development by failingto deem the children of homeowners at Country Pointe at Dix Hills to be members of the golfand country club and failing to construct a pool and clubhouse on Lot 73 at the Country Pointe atDix Hills development, (2), as limited by its notice of appeal and brief, from so much of a secondorder of the same court, also dated September 4, 2008, as granted those branches of the motion ofthe defendants Alvin Benjamin, Benjamin Development Co., Inc., and Benjamin MillenniumGroup, LLC, which were for summary judgment dismissing the eighth, tenth, and eleventhcauses of action insofar as asserted against those defendants, and declaring that the membershipand club access practices of the golf and country club do not unlawfully discriminate againstowners of homes at Country Pointe at Dix Hills and are valid, that the membership and clubaccess practices of the golf and country club do not violate the rights secured to thosehomeowners, their family members, and residents of those homes pursuant to the governingdocuments of the plaintiff Country Pointe at Dix Hills Home Owners Association, Inc., thecontracts between those homeowners and the sponsor of Country Pointe at Dix Hills, and NewYork law, that the golf and country club may be owned by the defendant Greens Golf Club, LLC,and that each individual homeowner at Country Pointe at Dix Hills is not entitled to opt out ofand back into his or her mandatory social membership in the subject golf and country club, (3),as limited by its notice of appeal and brief, from so much of a third order of the same court, alsodated September 4, 2008, as granted those branches of the motion of the defendants S.B.J.Associates, LLC, Greens at Half Hollow, LLC, Jobco Realty and Development Co., Inc., GreensGolf Club, LLC, KJV, LLC, Steve Kaplan, Neal S. Kaplan, Lee Kaplan, and Sherry Stolzenberg,which were for summary judgment dismissing the third, fourth, fifth, sixth, eighth, tenth,eleventh, thirteenth, and fourteenth causes of action insofar as asserted against those defendantsand declaring that the membership and club access practices of the golf and country club do notunlawfully discriminate against owners of homes at Country Pointe at Dix Hills and are valid,that the membership and club access practices of the golf and country club do not violate therights secured to those homeowners, their family members, and residents of those homespursuant to the governing documents of the plaintiff Country Pointe at Dix Hills Home OwnersAssociation, Inc., the contracts between those homeowners and the sponsor of Country Pointe atDix Hills, and New York law, that the golf and country club may be owned by the defendantGreens Golf Club, LLC, and that each individual homeowner at Country Pointe at Dix Hills isnot entitled to opt out of and back into his or her mandatory social membership in the subjectgolf and country club (4), as limited by its notice of appeal and brief, from so much of an order ofthe same court dated August 4, 2009, as denied that branch of its motion which was for leave torenew its opposition to those branches of the motion of the defendants Alvin Benjamin,Benjamin Development Co., Inc., and Benjamin Millennium Group, LLC, which were forsummary judgment dismissing the eighth, tenth, and eleventh causes of action insofar as assertedagainst those defendants and declaring that the membership and club access practices of the golfand country club do not unlawfully discriminate against owners of homes at Country Pointe atDix Hills and are valid, that the membership and club access practices of the golf and countryclub do not violate the rights secured to those homeowners, their family members, and residentsof those homes pursuant to the governing documents of the plaintiff Country Pointe at Dix HillsHome Owners Association, Inc., the contracts between those homeowners and the sponsor ofCountry Pointe at Dix Hills, and New York law, that the golf and country club may be owned bythe defendant Greens Golf Club, LLC, and that each individual homeowner at Country Pointe atDix Hills is not entitled to opt out of and back into his or her mandatory social membership in thesubject golf and country club, (5), as limited by its notice of appeal and brief, from so much of asecond order of the same court, also dated August 4, 2009, as denied that branch of its motionwhich was for leave to renew its opposition to those branches of the motion by the defendantsS.B.J. Associates, LLC, Greens at Half Hollow, LLC, Jobco Realty and Development Co., Inc.,Greens Golf Club, LLC, KJV, LLC, Steve Kaplan, Neal S. Kaplan, Lee Kaplan, and SherryStolzenberg, which were for summary judgment dismissing the third, fourth, fifth, sixth, eighth,tenth, eleventh, thirteenth, and fourteenth causes of action insofar as asserted [*3]against the defendants S.B.J. Associates, LLC, Greens at HalfHollow, LLC, Greens Golf Club, LLC, and Sherry Stolzenberg, and declaring that themembership and club access practices of the golf and country club do not unlawfullydiscriminate against owners of homes at Country Pointe at Dix Hills and are valid, that themembership and club access practices of the golf and country club do not violate the rightssecured to those homeowners, their family members, and residents of those homes pursuant tothe governing documents of the plaintiff Country Pointe at Dix Hills Home Owners Association,Inc., the contracts between those homeowners and the sponsor of Country Pointe at Dix Hills,and New York law, that the golf and country club may be owned by the defendant Greens GolfClub, LLC, and that each individual homeowner at Country Pointe at Dix Hills is not entitled toopt out of and back into his or her mandatory social membership in the subject golf and countryclub, (6) from so much of a third order of the same court, also dated August 4, 2009, as denied itsmotion for leave to amend the complaint, and (7), as limited by its notice of appeal and brief,from stated portions of an order of the same court dated August 6, 2009, which, inter alia, deniedthat branch of its motion which was for leave to renew its opposition to those branches of themotion of the defendants Beechwood Carmen Building Corp., Michael Dubb, Leslie A. Lerner,Carol Bosco, Richard Rosenberg, Ted Jung and Michael Leeds pursuant to CPLR 3211 (a) (1)and (7) which were to dismiss so much of the amended verified complaint as alleged that thosedefendants breached the offering plan for the Country Pointe at Dix Hills development by failingto deem the children of homeowners at Country Pointe at Dix Hills to be members of the golfand country club and failing to construct a pool and clubhouse on Lot 73 at the Country Pointe atDix Hills development, and, upon reargument, granted that branch of the cross motion of thedefendants Beechwood Organization, Beechwood Carmen Building Corp., Michael Dubb, LeslieA. Lerner, Carol Bosco, Richard Rosenberg, Ted Jung, and Michael Leeds which was to dismissthe seventh cause of action alleging breach of fiduciary duty insofar as asserted against thedefendants Beechwood Organization and Beechwood Carmen Building Corp., and the defendantsBeechwood Organization, Beechwood Carmen Building Corp., Michael Dubb, Leslie A. Lerner,Carol Bosco, Richard Rosenberg, Ted Jung, and Michael Leeds cross-appeal, as limited by theirbrief, from (1) so much of the first order dated September 4, 2008, as denied those branches oftheir motion pursuant to CPLR 3211 (a) (1) and (7) which were to dismiss the causes of actionalleging fraud, negligent misrepresentation, and violation of General Business Law § 349insofar as asserted against them and those portions of the first cause of action alleging breach ofcontract insofar as asserted against the defendants Beechwood Organization and BeechwoodCarmen Building Corp. except for that portion alleging that the defendants BeechwoodOrganization and Beechwood Carmen Building Corp. failed to deed the common areas of thesubject development to the plaintiff and to pay certain assessments, and, in effect, denied thatbranch of their motion pursuant to CPLR 3211 (a) (1) and (7) which was to dismiss the cause ofaction alleging breach of fiduciary duty insofar as asserted against them, and (2) stated portionsof the order dated August 6, 2009, which, inter alia, denied that branch of their motion whichwas for leave to renew those branches of their motion which were pursuant to CPLR 3211 (a) (1)and (7) to dismiss the causes of action alleging fraud insofar as asserted against them.
Ordered that the cross appeal from so much of the first order dated September 4, 2008, as, ineffect, denied that branch of the motion of the defendants Beechwood Carmen Building Corp.,Michael Dubb, Leslie A. Lerner, Carol Bosco, Richard Rosenberg, Ted Jung, and Michael Leedspursuant to CPLR 3211 (a) (1) and (7) which was to dismiss the seventh cause of action allegingbreach of fiduciary duty insofar as asserted against the defendants Beechwood Organization andBeechwood Carmen Building Corp., is dismissed, as that portion of the order was superseded bythe order dated August 6, 2009, made upon reargument; and it is further,
Ordered that the first order dated September 4, 2008, is affirmed insofar as appealed from bythe plaintiff; and it is further,
Ordered that the first order dated September 4, 2008, is reversed insofar as reviewed on thecross appeal, on the law, those branches of the motion of the defendants Beechwood CarmenBuilding Corp., Michael Dubb, Leslie A. Lerner, Carol Bosco, Richard Rosenberg, Ted Jung,and Michael Leeds pursuant to CPLR 3211 (a) (1) and (7) which were to dismiss the causes ofaction alleging fraud, negligent misrepresentation, and violation of General Business Law§ 349 insofar as asserted against them and those portions of the first cause of actionalleging breach of [*4]contract insofar as asserted against thedefendants Beechwood Organization and Beechwood Carmen Building Corp. except for thatportion alleging that the defendants Beechwood Organization and Beechwood Carmen BuildingCorp. failed to deed the common areas of the subject development to the plaintiff and to paycertain assessments are granted; and it is further,
Ordered that the second and third orders dated September 4, 2008, and the orders datedAugust 4, 2009, are affirmed insofar as appealed from; and it is further,
Ordered that the cross appeal by the defendants Beechwood Organization, BeechwoodCarmen Building Corp., Michael Dubb, Leslie A. Lerner, Carol Bosco, Richard Rosenberg, TedJung and Michael Leeds from the order dated August 6, 2009, is dismissed as academic in lightof our determination of the cross appeal from the first order dated September 4, 2008; and it isfurther,
Ordered that the order dated August 6, 2009, is affirmed insofar as appealed from; and it isfurther,
Ordered that the matter is remitted to the Supreme Court, Suffolk County, for the entry of ajudgment, inter alia, declaring that the membership and club access practices of the golf andcountry club owned by the defendant Greens Golf Club, LLC, do not unlawfully discriminateagainst owners of homes at Country Pointe at Dix Hills and that those practices are not invalid,that the membership and club access practices of the golf and country club do not violate therights secured to those homeowners, their family members, and residents of those homespursuant to the governing documents of the plaintiff Country Pointe at Dix Hills Home OwnersAssociation, Inc., the contracts between those homeowners and the sponsor of Country Pointe atDix Hills, and New York law, that the golf and country club may be owned by the defendantGreens Golf Club, LLC, and that each individual homeowner at Country Pointe at Dix Hills isnot entitled to opt out of and back into his or her mandatory social membership in the golf andcountry club; and it is further,
Ordered that one bill of costs is awarded to the defendants appearing separately and filingseparate briefs, payable by the plaintiff.
The plaintiff, Country Pointe at Dix Hills Home Owners Association, Inc. (hereinafter thehomeowners association), is a corporation organized to represent individual homeowners of unitswithin the Country Pointe at Dix Hills residential development (hereafter the development). Thehomeowners association commenced the instant action, ostensibly on behalf of its members,against, among others, the development's sponsor Beechwood Organization (hereinafter thesponsor), developer Beechwood Carmen Building Corp. (hereinafter the developer), and theprincipals of those entities, the defendants Michael Dubb, Leslie A. Lerner, Carol Bosco, RichardRosenberg, Ted Jung and Michael Leeds (hereafter collectively the Beechwood defendants)alleging, inter alia, breach of contract and fraud in connection with the homeowners' mandatorysocial membership in a golf and country club (hereinafter the club) located at an adjacentcondominium development where residency is limited to persons aged 55 and older, known asthe Greens at Half Hollow, which is owned and operated by the defendant Greens Golf Club,LLC (hereinafter GGC).
"To succeed on a motion to dismiss pursuant to CPLR 3211 (a) (1), the documentaryevidence that forms the basis of the defense must be such that it resolves all factual issues as amatter of law, and conclusively disposes of the plaintiff's claim" (Trade Source v WestchesterWood Works, 290 AD2d 437 [2002], citing Teitler v Pollack & Sons, 288 AD2d 302[2001]; see 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144 [2002];Leon v Martinez, 84 NY2d 83 [1994]).
"On a motion to dismiss pursuant to CPLR 3211 (a) (7), the court must determine, acceptingas true the factual averments of the complaint and according the plaintiff the benefit of allfavorable inferences, whether the plaintiff can succeed upon any reasonable view of the facts asstated" (Schneider v Hand, 296 AD2d 454, 454 [2002]). Such a motion will fail if, fromthe four corners of the complaint, factual allegations are discerned which taken together manifestany cause of action cognizable at law (see Guggenheimer v Ginzburg, 43 NY2d 268, 275[1977]). However, "bare legal [*5]conclusions and factual claimswhich are flatly contradicted by the record are not presumed to be true" (Parola, Gross & Marino, P.C. vSusskind, 43 AD3d 1020, 1021-1022 [2007]; see Kupersmith v Winged Foot Golf Club, Inc., 38 AD3d 847, 848[2007]).
Here, despite the allegations to the contrary made by the homeowners association, thedocumentary evidence, including the offering plan referable to the development, the contracts ofsale for units within the development, the rules and regulations of the club, and an agreementbetween the developer and the defendant S.B.J. Associates, LLC, conclusively proves that theamenities and services which the members of the homeowners association claimed they werereceiving, were in accord with those documents, as well as the deal those members bargained forwhen purchasing their homes (seeLarchmont Nurseries, Inc. v Daly, 33 AD3d 872, 874 [2006]; Nagle v ShearsonLehman Bros., 190 AD2d 568 [1993]). Further, the complaint fails to sufficiently pleadallegations against the individual Beechwood defendants to justify piercing the corporate veil inorder to hold them personally liable in this action (see Damianos Realty Group, LLC v Fracchia, 35 AD3d 344[2006]).
Accordingly, except to the extent that the homeowners association alleges in the first causeof action of the amended verified complaint that the sponsor and the developer failed to deed, toit, the common areas of the development and failed to pay assessments, the Supreme Court erredin denying those branches of the Beechwood defendants' motion pursuant to CPLR 3211 (a) (1)and (7) which were to dismiss the first cause of action alleging breach of contract insofar asasserted against the sponsor and the developer, and to dismiss the causes of action alleging fraud,negligent misrepresentation, violation of General Business Law § 349, and breach offiduciary duty insofar as asserted against all of the Beechwood defendants.
The defendants Alvin Benjamin, Benjamin Development Co., Inc., and BenjaminMillennium Group, LLC (hereinafter collectively the Benjamin defendants), established theirprima face entitlement to judgment as a matter of law dismissing the eighth, tenth, and eleventhcauses of action insofar as asserted against them, and declaring that the membership and clubaccess practices of the club do not unlawfully discriminate against owners of homes in thedevelopment and are valid, that the membership and club access practices of the club do notviolate the rights secured to those homeowners, their family members, and residents of thosehomes pursuant to the governing documents of the homeowners association, the contractsbetween those homeowners and the sponsor, and New York law, that the club may be owned bythe defendant GGC, and that each individual homeowner in the development is not entitled to optout of and back into his or her mandatory social membership in the club (see Zuckerman vCity of New York, 49 NY2d 557 [1980]). Likewise, the defendants S.B.J. Associates, LLC,Greens at Half Hallow, LLC, Jobco Realty and Development, LLC, GGC, KJV, LLC, StevenKaplan, Neal S. Kaplan, Lee Kaplan and Sherry Stolzenberg (hereinafter collectively the Kaplandefendants), also established their prima facie entitlement to judgment as a matter of lawdismissing the third, fourth, fifth, sixth, eighth, tenth, eleventh, thirteenth, and fourteenth causesof action insofar as asserted against them, and declaring the rights and obligations of the partiesin accordance with the relief sought by the Benjamin defendants (id.). The Kaplandefendants and the Benjamin defendants established, as a matter of law, inter alia, that theyneither breached any contract nor committed any fraud in connection with the membership of themembers of the homeowners association in the golf club. In opposition, the plaintiff failed toraise a triable issue of fact. Accordingly, the Supreme Court properly awarded summaryjudgment to the Benjamin defendants dismissing the eighth, tenth, and eleventh causes of actioninsofar as asserted against them, to the Kaplan defendants dismissing the third, fourth, fifth,sixth, eighth, tenth, eleventh, thirteenth, and fourteenth causes of action insofar as assertedagainst them, and declaring the rights and obligations of the parties in accordance with the reliefsought by both the Benjamin defendants and the Kaplan defendants (see Zuckerman v City ofNew York, 49 NY2d 557 [1980]).
Having failed to raise the affirmative defense of lack of standing in their pre-answer motion,or to plead it in their subsequently served answer, the Beechwood defendants waived theircontention that the homeowners association lacks standing (see CPLR 3211 [a] [3]; [e];Deutsche Bank Natl. Trust Co. vJackson, 68 AD3d 805 [2009]; see also Matter of Fossella v Dinkins, 66 NY2d162, 167-168 [1985]; Dougherty v City of Rye, 63 NY2d 989, 991-992 [1984]).[*6]
The parties' remaining contentions either are not properlybefore the Court, need not be reached in view of our determination, or are without merit.
Since this is, in part, a declaratory judgment action, we remit the matter to the SupremeCourt, Suffolk County, for the entry of a judgment, inter alia, declaring that the membership andclub access practices of the club do not unlawfully discriminate against owners of homes in thedevelopment and that those practices are not invalid, that the membership and club accesspractices of the club do not violate the rights secured to those homeowners, their familymembers, and residents of those homes pursuant to the governing documents of the homeownersassociation, the contracts between those homeowners and the developer, and New York law, thatthe club may be owned by GGC, and that each individual homeowner in the development is notentitled to opt out of and back into his or her mandatory social membership in the club (seeLanza v Wagner, 11 NY2d 317 [1962], appeal dismissed 371 US 74 [1962], certdenied 371 US 901 [1962]). Dillon, J.P., Angiolillo, Hall and Roman, JJ., concur. [PriorCase History: 21 Misc 3d 1110(A), 2008 NY Slip Op 52033(U).]