| Molander v Pepperidge Lake Homeowners Assn. |
| 2011 NY Slip Op 02641 [82 AD3d 1180] |
| March 29, 2011 |
| Appellate Division, Second Department |
| Garth Molander et al., Appellants, v Pepperidge LakeHomeowners Association et al., Respondents. |
—[*1] Miranda Sambursky Slone Sklarin Verveniotis LLP, Mineola, N.Y. (Michael A. Miranda andKelly C. Spina of counsel), for respondents Pepperidge Lake Homeowners Association, PLHOABoard of Directors, Arthur Lorelli, Anna Mae Casatuta, John Weber, Sheila J. Nugent, andRobert Beardslee. Cohen & Warren, P.C., Smithtown, N.Y. (Evan M. Gitter of counsel), for respondentsRobert L. and Shirley I. Hughes Family Trust, Michael Casatuta, and Christine Beardslee. Roe Taroff Taitz & Portman, LLP, Bohemia, N.Y. (Steven Taitz and Linda D. Calder ofcounsel), for respondents Kelly Westhoff and Colette Westhoff. Robert Quinlan, Town Attorney, Farmingville, N.Y. (J. Lee Snead of counsel), forrespondents Paul M. DeChance, Chairman, Terry J. Karl, Keri Peragine, Kevin McCarrick,James Wisdom, Diane Burke, and George Proios, individually and in the capacity of each asmember of the Zoning Board of Appeals of the Town of Brookhaven, Town of Brookhaven,Town of Brookhaven Tax Assessor, Board of Assessment Review of the Town of Brookhaven,Arthur Gerhauser, individually and in his capacity as the Chief Building Inspector of the Town ofBrookhaven Building Division, John Weiss, individually and in his capacity as the Chief ZoningInspector of the Town of Brookhaven, Karen Wilutis, individually and in her capacity asAttorney for the Town of Brookhaven, and James Burke, individually and in his capacity asAttorney of the Town of Brookhaven.
In an action, inter alia, to recover damages for violations of civil and constitutional rightspursuant to 42 USC § 1983 and private nuisance, the plaintiffs appeal, as limited by theirbrief, from so much of an order of the Supreme Court, Suffolk County (Rebolini, J.), datedNovember 5, 2009, as granted those branches of the motion of the defendants Paul M. DeChance,Terry J. Karl, Keri Peragine, Kevin McCarrick, James Wisdom, Diane Burke, George Proios,Town of Brookhaven, Town of Brookhaven Tax Assessor, Board of Assessment Review of theTown of Brookhaven, Arthur Gerhauser, John Weiss, Karen Wilutis, and James Burke whichwere for summary judgment dismissing the 60th, 61st, and 63rd through 68th causes of actionasserted against those defendants, granted those branches of the cross motion of the defendantsPepperidge Lake Homeowners Association, PLHOA Board of Directors, Arthur Lorelli, AnnaMae Casatuta, John Weber, Sheila J. [*2]Nugent, and RobertBeardslee which were for summary judgment dismissing the 1st through 11th causes of action,the 23rd, 24th, 27th through 30th, 37th through 39th, 42nd through 44th, and 53rd causes ofaction asserted against those defendants, and, in effect, declaring that a fine imposed by thedefendant PLHOA Board of Directors upon the plaintiffs in the sum of $2,500 is not null andvoid, granted the cross motion of the defendants Kelly Westhoff and Colette Westhoff forsummary judgment dismissing the complaint insofar as asserted against those defendants, grantedthose branches of the renewed cross motion of the defendants Michael Casatuta, Robert L. andShirley I. Hughes Family Trust, Kathleen McLeod, and Christine Beardslee which were pursuantto CPLR 3211 (a) (7) to dismiss the 17th, 18th, 33rd, 34th, 49th, 50th, and 58th causes of actioninsofar as asserted against those defendants, and denied that branch of their cross motion whichwas, in effect, for summary judgment declaring that the fine imposed by the defendant PLHOABoard of Directors upon them is null and void.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the cross motion of the defendants Pepperidge Lake Homeowners Association,PLHOA Board of Directors, Arthur Lorelli, Anna Mae Casatuta, John Weber, Sheila J. Nugent,and Robert Beardslee which was for summary judgment dismissing the fifth cause of action, andsubstituting a provision therefor denying that branch of that cross motion; as so modified, theorder is affirmed insofar as appealed from, with one bill of costs to the defendants Paul M.DeChance, Terry J. Karl, Keri Peragine, Kevin McCarrick, James Wisdom, Diane Burke, GeorgeProios, Town of Brookhaven, Town of Brookhaven Tax Assessor, Board of Assessment Reviewof the Town of Brookhaven, Arthur Gerhauser, John Weiss, Karen Wilutis, and James Burke, thedefendants Michael Casatuta, Robert L. and Shirley I. Hughes Family Trust, Kathleen McLeod,and Christine Beardslee, and the defendants Kelly Westhoff and Colette Westhoff, payable by theplaintiffs, and the matter is remitted to the Supreme Court, Suffolk County, for the entry of ajudgment declaring that the fine imposed by the defendant PLHOA Board of Directors upon theplaintiffs in the sum of $2,500 is not null and void.
The plaintiffs, members of Pepperidge Lake Homeowners Association, Inc., sued herein asPepperidge Lake Homeowners Association (hereinafter the Homeowners Association), own aunit at the Pepperidge Lakes condominium complex. The condominium is located in the Town ofBrookhaven.
The Homeowners Association is governed by the defendant PLHOA Board of Directors(hereinafter the Board). At all relevant times, the defendants Arthur Lorelli, Anna Mae Casatuta,John Weber, Sheila J. Nugent, and Robert Beardslee were members of the Board.
In 2005 the plaintiffs decided to construct a third-story dormer on their unit. A neighboringunit, owned by the defendant Robert L. and Shirley I. Hughes Family Trust (hereinafter theTrust), had a similar dormer. On November 30, 2006, the New York State Department of Staterequired the plaintiffs to install a sprinkler system in the attic of their unit as a condition of theconstruction of a dormer on their unit. Allegedly, the Trust's unit does not have a sprinklersystem installed in its attic. On or about May 12, 2008, the Town's Building Division issued theplaintiffs a building permit for the construction project. The Town's Building Division, in effect,required the plaintiffs to install a sprinkler system in the attic of their unit as a condition of theissuance of the permit. On or about August 3, 2008, the plaintiffs had the dormer constructed.The Board then imposed a fine in the sum of $2,500 upon the plaintiffs for constructing thedormer without the Board's approval.
The plaintiffs commenced this action against, among others, the Homeowners Association,the Board, the individual members of the Board, the Trust, the Town, and several town agenciesand officials, alleging that their constitutional rights had been violated, challenging theimposition of the fine under numerous legal theories, and seeking related relief.
The Town and the defendants Paul M. DeChance, Terry J. Karl, Keri Peragine, KevinMcCarrick, Jane Wisdom, Diane Burke, George Proios, Town of Brookhaven Tax Assessor,Board of Assessment Review of the Town of Brookhaven, Arthur Gerhauser, John Weiss, KarenWilutis, and James Burke (hereinafter collectively the town defendants) made a prima facieshowing [*3]of their entitlement to judgment as a matter of lawdismissing the causes of action against them to recover damages pursuant to 42 USC §1983 for alleged deprivations of the plaintiffs' equal protection and due process rights (seeAlvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The town defendants established,inter alia, that the determination of the Town's Building Division that the plaintiffs were requiredto install a sprinkler system in the attic of their unit was not prompted by an "impermissiblemotive" (Bower Assoc. v Town of Pleasant Val., 2 NY3d 617, 631 [2004]). The towndefendants also established that the determination had a "legal justification" (Bower Assoc. vTown of Pleasant Val., 2 NY3d at 628). In opposition, the plaintiffs failed to raise a triableissue of fact (see Alvarez v Prospect Hosp., 68 NY2d at 324).
The Homeowners Association, the Board, and the Board's members (hereinafter collectivelythe Board defendants) made a prima facie showing of entitlement to judgment as a matter of lawdismissing the relevant causes of action challenging certain Board determinations, including thedetermination imposing the fine (see Alvarez v Prospect Hosp., 68 NY2d at 324). Where,as here, a unit owner challenges an action of the condominium's board, "courts apply the businessjudgment rule" (Yusin v Saddle Lakes Home Owners Assn., Inc., 73 AD3d 1168,1170-1171 [2010]; Helmer v Comito, 61 AD3d 635, 636 [2009]; see Walden WoodsHomeowners' Assn. v Friedman, 36 AD3d 691, 692 [2007]). The Board defendantsdemonstrated that the challenged determinations were "authorized and . . . taken ingood faith and in furtherance of the legitimate interests of the condominium" (Quinones vBoard of Mgrs. of Regalwalk Condominium I, 242 AD2d 52, 54 [1998] [internal quotationmarks and citation omitted]; see Matter of Levandusky v One Fifth Ave. Apt. Corp., 75NY2d 530, 538 [1990]; Schoninger v Yardarm Beach Homeowners' Assn., 134 AD2d 1,10 [1987]). In opposition, the plaintiffs, who offered "conclusory and speculative allegations ofbad faith, self-dealing, and other wrongdoing" (Bay Crest Assn., Inc. v Paar, 72 AD3d713, 714 [2010]), failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68NY2d at 324).
However, the Board defendants failed to make a prima facie showing of their entitlement tojudgment as a matter of law dismissing the fifth cause of action (see Alvarez v ProspectHosp., 68 NY2d at 324), which sought to compel the Board to enforce a "Declaration ofCovenants, Restrictions, Easements, Charges and Liens" (hereinafter the Declaration) againstcertain unit owners, including the Trust. The plaintiffs alleged that those owners' units violatecertain applicable codes in certain respects and, consequently, that those owners are violating theDeclaration, which requires all unit owners to "observe[ ]" all "valid laws, zoning ordinances[and] the regulations of all governmental bodies having jurisdiction" over the condominium.Contrary to the Board defendants' contention, they did not establish, prima facie, that the Board isunder no obligation to enforce the Declaration. Indeed, when the condominium's developerincorporated the Homeowners Association, the developer, in the certificate of incorporation,recited that one of the Homeowners Association's "purposes" was "[t]o enforce any and allcovenants, restrictions and agreements applicable to the" condominium units, "and particularlythe Declaration." In addition, in the Declaration, the developer indicated that it incorporated theHomeowners Association for the "purpose" of "administering and enforcing the [Declaration's]covenants and restrictions." Accordingly, the Supreme Court should have denied that branch ofthe Board defendants' cross motion which was for summary judgment dismissing the fifth causeof action asserted against it (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851,853 [1985]).
Affording the complaint a liberal construction, accepting all facts alleged in the complaint tobe true, and according the plaintiffs the benefit of every favorable inference, as required on amotion to dismiss pursuant to CPLR 3211 (a) (7), the complaint fails to state causes of actionagainst the Trust and certain other defendant unit owners to recover damages for private nuisance(see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). An "essential feature" of a privatenuisance is an interference with the use or enjoyment of real property (Copart Indus. vConsolidated Edison Co. of N.Y., 41 NY2d 564, 568 [1977]). The plaintiffs failed to allegethat these owners' units interfered with the use of enjoyment of the plaintiffs' real property even ifthe units did not comply with certain applicable codes.
The plaintiffs' remaining contentions are without merit.
Since this is, in part, a declaratory judgment action, the matter must be remitted to the [*4]Supreme Court, Suffolk County, for the entry of a judgment, interalia, declaring that the fine imposed by the Board is not null and void. Covello, J.P., Dickerson,Eng and Sgroi, JJ., concur. [Prior Case History: 25 Misc 3d 1231(A), 2009 NY Slip Op52360(U).]