| 1812 Quentin Rd., LLC v 1812 Quentin Rd. CondominiumLtd. |
| 2012 NY Slip Op 03155 [94 AD3d 1070] |
| April 24, 2012 |
| Appellate Division, Second Department |
| 1812 Quentin Road, LLC, et al., Appellants, v 1812Quentin Road Condominium Ltd. et al., Respondents, et al.,Defendants. |
—[*1] Lazare Potter & Giacovas LLP, New York, N.Y. (Stephen M. Lazare and Patricia Dee Bilkaof counsel), for respondent Phoenix Insurance Company.
In an action, inter alia, to recover damages for breach of contract and negligence, theplaintiffs appeal (1) from an order of the Supreme Court, Kings County (Schmidt, J.), datedDecember 2, 2010, which granted the motion of the defendant Phoenix Insurance Company, alsoknown as Travelers, for summary judgment dismissing the amended complaint insofar asasserted against it and denied their cross motion for summary judgment on the issue of liabilityagainst that defendant, and (2), as limited by their brief, from so much of an order of the samecourt, also dated December 2, 2010, as granted that branch of the motion of the defendants 1812Quentin Road Condominium Ltd., and Tatiana Borodulina which was for summary judgmentdismissing so much of the second cause of action as alleged breach of contract against thedefendant 1812 Quentin Road Condominium Ltd.
Ordered that the first order is affirmed; and it is further,
Ordered that the second order is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the defendant Phoenix Insurance Company, alsoknown as Travelers.
The Supreme Court properly granted the motion of the defendant Phoenix InsuranceCompany, also known as Travelers (hereinafter Phoenix), for summary judgment dismissing theamended complaint insofar as asserted against it. Contrary to the plaintiffs' contention, Phoenixdemonstrated, prima facie, a lack of coverage for the occurrence at issue, for which no disclaimerwas required (see Handelsman v Sea Ins. Co., 85 NY2d 96, 99 [1994]; Zappone vHome Ins. Co., 55 NY2d 131, 136-137 [1982]; Schatz v St. Paul Fire & Mar. Ins.Co., 269 AD2d 380 [2000]). In opposition, the plaintiffs failed to raise a triable issue of fact(see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). For the same reason,the Supreme Court properly denied the plaintiffs' cross motion for summary [*2]judgment on the issue of liability against Phoenix.
Contrary to the plaintiffs' contention, the Supreme Court properly awarded summaryjudgment to the defendant 1812 Quentin Road Condominium Ltd. (hereinafter theCondominium), dismissing so much of the second cause of action as alleged breach of contractagainst it. "Where a unit owner challenges an action by a condominium Board of Managers,courts apply the business judgment rule" (Helmer v Comito, 61 AD3d 635, 636 [2009]; see Matter ofLevandusky v One Fifth Ave. Apt. Corp., 75 NY2d 530, 539 [1990]; Acevedo v Town 'N CountryCondominium, Section I, Bd. of Mgrs., 51 AD3d 603 [2008]; Schoninger v YardarmBeach Homeowners' Assn., 134 AD2d 1, 10 [1987]). "Under the business judgment rule, thecourt's inquiry is limited to whether the board acted within the scope of its authority under thebylaws (a necessary threshold inquiry) and whether the action was taken in good faith to further alegitimate interest of the condominium. Absent a showing of fraud, self-dealing orunconscionability, the court's inquiry is so limited and it will not inquire as to the wisdom orsoundness of the business decision" (Schoninger v Yardarm Beach Homeowners' Assn.,134 AD2d at 9). Here, the Condominium and the defendant Tatiana Borodulina met their primafacie burden on their motion by submitting evidence that the Condominium acted within thescope of its authority under the bylaws and in good faith to further the interests of theCondominium. In opposition, the plaintiffs failed to raise a triable issue of fact (seeZuckerman v City of New York, 49 NY2d at 562).
The plaintiffs' remaining contention, that the Supreme Court should have sua sponte imposedsanctions for spoliation of evidence, is not properly before this Court, as it is raised for the firsttime on appeal. Angiolillo, J.P., Dickerson, Belen and Hall, JJ., concur.