Preview
FILED::
[FILED DUTCHESS
DUTCHESS COUNTY
COUNTY CLERK
CLERK 06/30/2020
02/28/2017 06:51
08 : 52 PM
AM|
INDEX
INDEX NO.
NO. 2017-50017
2017-50017
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 349
7 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 06/30/2020
02/28/2017
EXHIBIT A
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
------------¬_____--______-_______________________________------------X
BOARD OF MANAGERS OF VAN WYCK GLEN ANSWER WITH
CONDOMINIUM, THE BOARD OF MANAGERS OF COUNTERCLAIMS
VAN WYCK MEADOWS CONDOMINIUM, a INDEX NO.: 2017-50017
Condominium created pursuant to Article 9-B of the
Real Property Law, on behalf of itsunit owners,
Plaintiffs,
-against-
VAN WYCK AT MERRITT PARK HOMEOWNERS
ASSOCIATION, INC., ANTHONY COSTA and
DICK HACK,
Defendants.
_____________________________---X
Defeñda VAN WYCK AT MERRITT PARK HOMEOWNERS
ASSOCIATION, INC., ANTHONY COSTA and DICK HACK, by their attorney,
LAW OFFICE OF LORI D. FISHMAN, answering the Complaint of the plaintiffs
herein, and Defendant, VAN WYCK AT MERRITT PARK HOMEOWNERS, by
their attorneys, Kalter, Kaplan, Zeiger and Forman, on the counterclaim, allege upon
information and belief:
FIRST CAUSE OF ACTION
(Declaratory Relief)
1. Denies knowledge or information sufficient to form a belief as to
"1"
paragraph designated of the Complaint.
2. Denies knowledge or information sufficient to form a belief as to
"2"
paragraph designated of the Complaint.
1 of 19
FILED::
[FILED DUTCHESS
DUTCHESS COUNTY
COUNTY CLERK
CLERK 06/30/2020
02/28/2017 06:51
08:52 PM
AM)
INDEX
INDEX NO.
NO. 2017-50017
2017-50017
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 349
7 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 06/30/2020
02/28/2017
3. Denies knowledge or information sufficient to form a belief as to
"3"
paragraph designated of the Complaint refers all questions oflaw to the Honorable
Courtatthetimeoftrial.
4. Deniesastoparagraphdesignated"4"ofthe Complaint.
5. Denies knowledge or information sufficient to form a belief as to
"5"
paragraph designated of the Complaint and begs leave to refer to all of the
Coñdominium Governing Documents and/or Association Governing Documents at the
timeofthetrialofthisaction.
6. Denies knowledge or information sufficient to form a belief as to
"6"
paragraph designated of the Complaint and begs leave to refer to all of the
Condominium Governiñg Documents and/or Association Governing Documents at the
timeofthetrialofthisaction.
7. Denies knowledge or information sufficient to form a belief as to
"7"
paragraph designated of the Complaint and begs leave to refer to all of the
Condominium Governing Documents and/or Association Governing Documents at the
timeofthetrialofthisaction.
8. Denies knowledge or information sufficient to form a belief as to
"8"
paragraph designated of the Complaint and begs leave to refer to all of the
Condominium Governing Documents and/or Association Governing Documents at the
time of the trial of thisaction.
9. Admit paragraph designated "9"oftheComplaint.
10. Admit paragraphdesignated"10"oftheComplaint.
11. Admit paragraphdesignated"11"oftheComplaint.
2 of 19
FILED::
FILED DUTCHESS
DUTCHESS COUNTY
COUNTY CLERK
CLERK 06/30/2020
02/28/2017 06:51
08 :52 W
PM INDEX
INDEX NO.
NO. 2017-50017
2017-50017
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 7349 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 02/28/2017
06/30/2020
"12"
12. Denies as to paragraph designated of the Complaint.
"13"
13. Admit paragraph designated of the Complaint
"14"
14. Denies as to paragraph designated of the Complaint.
"15"
15. Denies as to paragraph designated of the Complaint
"16"
16. Denies as to paragraph designated of the Complaint.
"17"
17. Denies as to paragraph designated of the Complaint.
"18"
18. Denies as to paragraph designated of the Complaint.
19. Denies knowledge or information sufficient to form a belief as to
"19"
paragraph designated of the Complaint refers all questions of law to the Honorable
Court at the time of trial.
20. Denies knowledge or information sufficient to form a belief as to
"20"
paragraph designated of the Complaint.
21. Denies knowledge or information sufficient to form a belief as to
"21"
paragraph designated of the Complaint refers all questions of law to the Honorãble
Court at the time of trial.
"22"
22. Denies as to paragraph designated of the Complaint.
SECOND CAUSE OF ACTION
(Declaratory Relief)
23. The defendants repeat and reiterate all the admissions and denials
contained in the foregoing Answer, with reference to those paragraphs repeated and
"23"
reiterated in paragraph designated of the Complaint.
"24"
24. Denies as to paragraph designated of the Complaint except admit that
the Directors owe a fiduciary duty to Plaintiffs and the unit owners.
"25"
25. Denies as to paragraph designated of the Complaint.
3 of 19
INDEX
INDEX NO.
NO. 2017-50017
2017-50017
FILED::
FILED DUTCHESS
DUTCHESS COUNTY
COUNTY CLERK
CLERK 06/30/2020
02/28/2017 06:51
08 :52 PM
AM)
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 7349 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 02/28/2017
06/30/2020
"26"
26. Denies as to paragraph designated of the Complaint.
"27"
27. Denies as to paragraph designated of the Complaint.
"28"
28. Denies as to paragraph designated of the Complaint.
"29"
29. Denies as to paragraph designated of the Complaint.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
30. Defendants, VAN WYCK AT MERRITT PARK HOMEOWNERS
ASSOCIATION, INC., ANTHONY COSTA and DICK HACK, acted properly at all
times in the performance of their duties.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
31. Defendants, VAN WYCK AT MERRITT PARK HOMEOWNERS
ASSOCIATION, INC., ANTHONY COSTA and DICK HACK, at no time, acted in a
maññer incussistent with the terms of the Condominium Governing Documents and/or
Association Governing Documents.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
32. The Complaint of the plaintiff fails to state a cause of action against these
answering defendants.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
33. Article VIII. Section 5. Powers. of the By-Laws of VAN WYCK AT
MERRITT PARK HOMEOWNERS ASSOCIATION, INC. states as follows:
(a) "The property and business of the Association shall be managed by its
Board of Directors, which may exercise all such powers of the Association
and do all such lawful acts and things as are not by Statute, Declaration,
Certificate of Incorporation or by these By-Laws, directed or required to
be exercised or done by the Members or Homeowners personally. These
powers shall specifically include, but not limited to the following items:
1. To determine and levy monthly assessments ("Common Expenses") to
cover the cost of operating and maintaining the Cununun Areas and other
4 of 19
FILED::
[FILED DUTCHESS
DUTCHESS COUNTY
COUNTY CLERK
CLERK 06/30/2020
02 /28/2017 06:51
08 : 52 PM INDEX
INDEX NO.
NO. 2017-50017
2017-50017
AM|
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 349
7 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 06/30/2020
02/28/2017
maintenance requiremcats of the Association payable in advance. The
Board of Directors may increase the monthly Common Expenses or vote a
special assessment in excess of that amount, if required, to meet any
additional necessary expenses.
2. To collect, use and expend the Common Expenses collected to maintain,
care for and preserve the Common Areas on The Properties and other
maintenance requirements of the Association.
3. To make repairs, restore and alter the Common Areas after damage or
destruction by fire or other casualty or as a result of condemnation or
eminent domain proceedings.
4. To open bank accounts and borrow money on behalf of the Association
and to designate the signatories to such bank accounts.
5. To collect delinquent Common Expenses by suit or otherwise, to abate
nuisances and to enjoin or seek damages from Members for violations of
the house rules or rules and regulations herein referred to.
6. To make reasonable rules and regulations and to amend the same from
time to time. Such rules and regulations and amendments thereto shall be
binding upon the Members when the Board has approved them in writing
and delivered a copy of such rules and all amendments to each Member.
Such rules and regulations may without limiting the foregoing, include
reasonable limitations on the use of the Common Areas by guests of the
Members as well as reasonable admission and other fees for such use.
7. To impose fines or penalties upon any Member who violates the
Declaration, its rules and regulations or By-Laws as per Article IX (t) of
the Declaration.
8. To employ workers, contractors and supervisory personnel, and to
purchase supplies and equipment, to enter into contracts to provide
maintenance, refuse removal and other services, and generally to have the
power of Directors in connection with the matters hereinabove set forth.
9. To bring and defend actions by or against one or more Members any of
their occupants and lessees pertinent to the operation of the Association
and to assess special assessments to pay the cost of such litigation.
10. To hire a Managing Agent to perform and exercise the powers of the
Board of Directors in the management of the Development.
11. To execute, acknowledge and deliver (i) any declaration or other
instrument affecting the Properties, which the Board deems necessary or
appropriate to comply with any law, ordinance, regulation, zoning
resolution or requirement of any public authority, applicable to the
occupancy, maintenance, demolition, construction, alteration, reapir or
restoration of The Properties (ii) any consent, covenant, restriction,
easement or declaration, or any amendment thereto, affecting The
Properties which the Board deems necessary or appropriate.
Association."
12. To obtain and review insurance for the
5 of 19
FILED::
|FILED DUTCHESS
DUTCHESS COUNTY
COUNTY CLERK
CLERK 06/30/2020
02 2 8 /2017 06:51
08 : 52 PM
AM|
INDEX
INDEX NO.
NO. 2017-50017
2017-50017
/
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 349
7 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 06/30/2020
02/28/2017
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
34. Article HI. Section 11. Appointment of Board of Directors of
Association as Irrevocable Managina Agent. of the By-Laws of VAN WYCK GLEN
CONDOMINIUM and VAN WYCK MEADOWS CONDOMINIUM states as
follows:
"In order to provide uniformity of services in the Van Wyck at Merritt Park
Development, the Board of Managers shall be deemed to have irrevocably
appointed the Board of Directors of Van Wyck at Merritt Park Homeowners
Association, Inc. to provide all services in connection with the maintenance,
repair and replacement to the Common Elemeñts and to assess the
Homeowners for the cost of such maintenance. All of the powers granted to
the Board of Managers in connection with repairs and replacement of the
Common Elements by this Declaration including, but not limited to, the power
to make additions, alterations, or improvements to the Counuun Elements,
collecting assessments or borrowing money to pay for such work shall remain
the obligation of the Board of Managers but shall be performed by the Board
of Directors of the Association as the irrevocably appointed Managing Agent
of Van Wyck Glen (Meadows) Condominium. The Board of Managers shall,
however, be responsible for maintaining adequate fireand liability coverage
for the Homes and Common Elements as set forth herein. In the event the
Board of Directors of the Association fails to perform such functions, the
same."
Board of Managers will be responsible for
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
Plaintiffs'
35. Plaintiff's complaint is invalid because the Boards are not
properly constituted in accordance with the Condominium Governing Documents and
Plaintiffs'
therefore Boards have no authority to act.
AS AND FOR A COUNTERCLAIM AGAINST THE PLAINTIFFS
THE PA_RTIES
36. Van Wyck At Merritt Park Homeowners Association, Inc., is a New York
Corporation duly formed and existing under the laws of the State of New York
(hereinafter the "Association") with an office presently located c/o McGrath Management
6 of 19
FILED::
[FILED DUTCHESS
DUTCHESS COUNTY
COUNTY CLERK
CLERK 06/30/2020
02 /28/2017 06:51
08 : 52 PM INDEX
INDEX NO.
NO. 2017-50017
2017-50017
AMJ
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 349
7 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 06/30/2020
02/28/2017
Services, Inc. (hereinafter "McGrath"), 1906 Route 52, Hopewell Junction, New York,
12533.
37. The Association is part of a development situated on 178 acres in Town of
Fishkill, County of Dutchess, State of New York, commonly known as the Van Wyck
Communities.
38. The developer, or Sponsor, of the Van Wyck Communities was Toll Van
Wyck, LLC, a New York Limited Liability Company.
39. The Van Wyck Commüñities consists of the Association and three (3)
condominium associations known as Van Wyck Glen Condominium, Van Wyck
Meadows Condominium, and Van Wyck Meadows Condominium.
40. At alltimes relevant herein, the Plaintiff, the Board of Managers of Van Wyck
Glen Condominium, was an unincorporated association created upon filing of a
Declaration and By-Laws pursuant to Article 9-B of the Real Property Law of the State
of New York in the office of the Dutchess County Clerk.
41. At alltimes relevant herein, the Plaintiff, the Board of Managers of Van Wyck
Meadows Condominium, was an unincorporated association created upon filing of a
Declaration and By-Laws pursuant to Article 9-B of the Real Property Law of the State
of New York in the office of the Dutchess County Clerk.
42. The third Condominium Association Van Wyck Meadows 2 is not a party to
this action.
7 of 19
FILED::
[FILED DUTCHESS
DUTCHESS COUNTY
COUNTY CLERK
CLERK 06/30/2020
02 2 8 /2017 06:51
08 : 52 PM INDEX
INDEX NO.
NO. 2017-50017
2017-50017
/ AM|
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 349
7 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 06/30/2020
02/28/2017
THE OPERATING DOCUMENTS OF THE PARTIES
43. The Declaration of Covenants, Restrictions, Easements, Charges and Lien,
together with the By-Laws of the Association were duly filed in the Office of the
Dutchess County Clerk.
44. Article I of the Declaration contains the following definitions:
"Association"
(a) shall mean and refer to Van Wyck Merritt Park Homeowners
corporation."
Associations, Inc., a New York Not-for-Profit
Properties" Areas"
(e) "Common or "Common shall mean and refer to certain
areas of land as shown on the attached Site Plan which will be maintained by the
Association and which is intended to be devoted to the conunun use and enjoyment of the
owners of The Properties and shall include, without limitation, the recreational facilities,
roadways and any subsequent land or roadways that may become part of the Common
Property."
Properties located on the Phase II
"Developer" "Declarant"
(g) or shall mean and refer to Toll Van Wyck, LLC, a
New York Limited Liability Company and its successors and assigns, ifsuch successors
and assigns should acquire an undeveloped or developed but unsold portion of the
Properties for the purpose of development including, without limitation, any mortgagee
Developer."
which has foreclosed or acquired by other means the interests of the
Property"
(m) "Phase II shall mean and refer to the parcel of land contiguous to
Van Wyck Meadows Condominium, upon which the Developer intends to erect
additional Homes in a Condominium to be known as Van Wyck Glen Condominium and
which the Developer may bring within the scheme of this Declaration as set forth in
Article II,Section 2.
Properties" of"Development"
(n) "The shall mean and refer to all such Properties
described in Article II,including the Phase II Property, if such property is brought with in
Development."
the scheme of the
45. The Developer, Toll Van Wyck, LLC, did bring Van Wyck Glen
Condominium, and Van Wyck Meadows Condominium, within the scheme of the
Association's Declaration of Covenants Restrictions, Easements, Charges and Lien,
together with the By-Laws.
8 of 19
INDEX
INDEX NO.
NO. 2017-50017
2017-50017
FILED:
FILED : DUTCHESS
DUTCHESS COUNTY
COUNTY CLERK
CLERK 06/30/2020
02 / 2 8 /2017 06:51
08 :52 PM
AM|
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 349
7 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 02/28/2017
06/30/2020
Properties"
46. The term "The refers to and includes all the individual homes and
Common Properties of the Association and Van Wyck Glen Condominium, Van Wyck
Meadows Condominium and Van Wyck Meadows Condomirdüin.
47. The Properties are subject to the Declaration of Covenants, Restrictions,
Easements, Charges and Lien, together with the By-Laws of the Association.
48. Article VIII of the By-Laws of the Association, Section 2, provides, in
pertinent part, as follows:
"The Developer shall have the right to designate a majority of the total
Directors, until 95% of the Homes to be built on The Properties have been
conveyed (i.e, 95% of 513 Homes). Thereafter, the Developer shall have the
right to designate one (1) Director for so long as it owns one Unsold Home.
When the Developer no longer owns any Unsold Home in the Development it
may not designate any Directors. Developer may not cast its votes to elect any
above."
Directors in addition to the designated Directors set forth
49. In other words, the Developer, by virtue of designating a majority of the board
of directors, controlled the Board of the Association.
50. Article III, Section 11, of the By-Laws of each of Plaintiff provides
substantially as follows:
"In order to provide uniformity of services in the Van Wyck at Merittt Park
Development (of which Van Wyck Glen Cc:±-:··h•m is a part) the Board
of Managers shall be deemed to have irrevocably appointed the Board of
Directors of Van Wyck at Merritt Park Homeowners Association, Inc, to
provide all services in connection with the maintenance, repair, and
replacement, to the Common Elements and to assess the Homeowners for the
cost of such maintenance. All of the powers aranted to the Board of Managers
in connection with renairs and replauomonts to the Common Elements by this
Declaration. including. but not limited to, the power to make additions,
alterations, or improvements to the Common Elements. renairs. maintenance
and replacements to the Common Elements. collecting assessments or
borrowing money to pay for such work shall remain the obligation of the
Board of Managers but shall be performed by the Board of Directors of the
Association as the irrevocably appointed Managing Agent of Van Wyck Glen
Cañdominium. The Board of Managers shall, however, be responsible for
maintaining adequate fire and liability coverage for the Homes and the
9 of 19
FILED::
[FILED DUTCHESS
DUTCHESS COUNTY
COUNTY CLERK
CLERK 06/30/2020
02/28/2017 06:51
08 : 52 PM
AM|
INDEX
INDEX NO.
NO. 2017-50017
2017-50017
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 349
7 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 06/30/2020
02/28/2017
Common Elements. In the event the Board of Directors fails to perform such
same."
functions, the Boards of Managers will be responsible for (Emphasis
supplied).
The only difference in each of said by-law provisions of Plaintiffs is that the language
emphasized above in bold specifies the name of the that Condorñinium for which that by-
law was formed. So for example, the above bold language in the by-laws of Van Wyck
Preview
FILED:: [FILED DUTCHESS DUTCHESS COUNTY COUNTY CLERK CLERK 06/30/2020 02/28/2017 06:51 08 : 52 PM AM| INDEX INDEX NO. NO. 2017-50017 2017-50017 NYSCEF NYSCEF DOC. DOC. NO. NO. 349 7 RECEIVED RECEIVED NYSCEF: NYSCEF: 06/30/2020 02/28/2017 EXHIBIT A SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF DUTCHESS ------------¬_____--______-_______________________________------------X BOARD OF MANAGERS OF VAN WYCK GLEN ANSWER WITH CONDOMINIUM, THE BOARD OF MANAGERS OF COUNTERCLAIMS VAN WYCK MEADOWS CONDOMINIUM, a INDEX NO.: 2017-50017 Condominium created pursuant to Article 9-B of the Real Property Law, on behalf of itsunit owners, Plaintiffs, -against- VAN WYCK AT MERRITT PARK HOMEOWNERS ASSOCIATION, INC., ANTHONY COSTA and DICK HACK, Defendants. _____________________________---X Defeñda VAN WYCK AT MERRITT PARK HOMEOWNERS ASSOCIATION, INC., ANTHONY COSTA and DICK HACK, by their attorney, LAW OFFICE OF LORI D. FISHMAN, answering the Complaint of the plaintiffs herein, and Defendant, VAN WYCK AT MERRITT PARK HOMEOWNERS, by their attorneys, Kalter, Kaplan, Zeiger and Forman, on the counterclaim, allege upon information and belief: FIRST CAUSE OF ACTION (Declaratory Relief) 1. Denies knowledge or information sufficient to form a belief as to "1" paragraph designated of the Complaint. 2. Denies knowledge or information sufficient to form a belief as to "2" paragraph designated of the Complaint. 1 of 19 FILED:: [FILED DUTCHESS DUTCHESS COUNTY COUNTY CLERK CLERK 06/30/2020 02/28/2017 06:51 08:52 PM AM) INDEX INDEX NO. NO. 2017-50017 2017-50017 NYSCEF NYSCEF DOC. DOC. NO. NO. 349 7 RECEIVED RECEIVED NYSCEF: NYSCEF: 06/30/2020 02/28/2017 3. Denies knowledge or information sufficient to form a belief as to "3" paragraph designated of the Complaint refers all questions oflaw to the Honorable Courtatthetimeoftrial. 4. Deniesastoparagraphdesignated"4"ofthe Complaint. 5. Denies knowledge or information sufficient to form a belief as to "5" paragraph designated of the Complaint and begs leave to refer to all of the Coñdominium Governing Documents and/or Association Governing Documents at the timeofthetrialofthisaction. 6. Denies knowledge or information sufficient to form a belief as to "6" paragraph designated of the Complaint and begs leave to refer to all of the Condominium Governiñg Documents and/or Association Governing Documents at the timeofthetrialofthisaction. 7. Denies knowledge or information sufficient to form a belief as to "7" paragraph designated of the Complaint and begs leave to refer to all of the Condominium Governing Documents and/or Association Governing Documents at the timeofthetrialofthisaction. 8. Denies knowledge or information sufficient to form a belief as to "8" paragraph designated of the Complaint and begs leave to refer to all of the Condominium Governing Documents and/or Association Governing Documents at the time of the trial of thisaction. 9. Admit paragraph designated "9"oftheComplaint. 10. Admit paragraphdesignated"10"oftheComplaint. 11. Admit paragraphdesignated"11"oftheComplaint. 2 of 19 FILED:: FILED DUTCHESS DUTCHESS COUNTY COUNTY CLERK CLERK 06/30/2020 02/28/2017 06:51 08 :52 W PM INDEX INDEX NO. NO. 2017-50017 2017-50017 NYSCEF NYSCEF DOC. DOC. NO. NO. 7349 RECEIVED RECEIVED NYSCEF: NYSCEF: 02/28/2017 06/30/2020 "12" 12. Denies as to paragraph designated of the Complaint. "13" 13. Admit paragraph designated of the Complaint "14" 14. Denies as to paragraph designated of the Complaint. "15" 15. Denies as to paragraph designated of the Complaint "16" 16. Denies as to paragraph designated of the Complaint. "17" 17. Denies as to paragraph designated of the Complaint. "18" 18. Denies as to paragraph designated of the Complaint. 19. Denies knowledge or information sufficient to form a belief as to "19" paragraph designated of the Complaint refers all questions of law to the Honorable Court at the time of trial. 20. Denies knowledge or information sufficient to form a belief as to "20" paragraph designated of the Complaint. 21. Denies knowledge or information sufficient to form a belief as to "21" paragraph designated of the Complaint refers all questions of law to the Honorãble Court at the time of trial. "22" 22. Denies as to paragraph designated of the Complaint. SECOND CAUSE OF ACTION (Declaratory Relief) 23. The defendants repeat and reiterate all the admissions and denials contained in the foregoing Answer, with reference to those paragraphs repeated and "23" reiterated in paragraph designated of the Complaint. "24" 24. Denies as to paragraph designated of the Complaint except admit that the Directors owe a fiduciary duty to Plaintiffs and the unit owners. "25" 25. Denies as to paragraph designated of the Complaint. 3 of 19 INDEX INDEX NO. NO. 2017-50017 2017-50017 FILED:: FILED DUTCHESS DUTCHESS COUNTY COUNTY CLERK CLERK 06/30/2020 02/28/2017 06:51 08 :52 PM AM) NYSCEF NYSCEF DOC. DOC. NO. NO. 7349 RECEIVED RECEIVED NYSCEF: NYSCEF: 02/28/2017 06/30/2020 "26" 26. Denies as to paragraph designated of the Complaint. "27" 27. Denies as to paragraph designated of the Complaint. "28" 28. Denies as to paragraph designated of the Complaint. "29" 29. Denies as to paragraph designated of the Complaint. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 30. Defendants, VAN WYCK AT MERRITT PARK HOMEOWNERS ASSOCIATION, INC., ANTHONY COSTA and DICK HACK, acted properly at all times in the performance of their duties. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 31. Defendants, VAN WYCK AT MERRITT PARK HOMEOWNERS ASSOCIATION, INC., ANTHONY COSTA and DICK HACK, at no time, acted in a maññer incussistent with the terms of the Condominium Governing Documents and/or Association Governing Documents. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 32. The Complaint of the plaintiff fails to state a cause of action against these answering defendants. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 33. Article VIII. Section 5. Powers. of the By-Laws of VAN WYCK AT MERRITT PARK HOMEOWNERS ASSOCIATION, INC. states as follows: (a) "The property and business of the Association shall be managed by its Board of Directors, which may exercise all such powers of the Association and do all such lawful acts and things as are not by Statute, Declaration, Certificate of Incorporation or by these By-Laws, directed or required to be exercised or done by the Members or Homeowners personally. These powers shall specifically include, but not limited to the following items: 1. To determine and levy monthly assessments ("Common Expenses") to cover the cost of operating and maintaining the Cununun Areas and other 4 of 19 FILED:: [FILED DUTCHESS DUTCHESS COUNTY COUNTY CLERK CLERK 06/30/2020 02 /28/2017 06:51 08 : 52 PM INDEX INDEX NO. NO. 2017-50017 2017-50017 AM| NYSCEF NYSCEF DOC. DOC. NO. NO. 349 7 RECEIVED RECEIVED NYSCEF: NYSCEF: 06/30/2020 02/28/2017 maintenance requiremcats of the Association payable in advance. The Board of Directors may increase the monthly Common Expenses or vote a special assessment in excess of that amount, if required, to meet any additional necessary expenses. 2. To collect, use and expend the Common Expenses collected to maintain, care for and preserve the Common Areas on The Properties and other maintenance requirements of the Association. 3. To make repairs, restore and alter the Common Areas after damage or destruction by fire or other casualty or as a result of condemnation or eminent domain proceedings. 4. To open bank accounts and borrow money on behalf of the Association and to designate the signatories to such bank accounts. 5. To collect delinquent Common Expenses by suit or otherwise, to abate nuisances and to enjoin or seek damages from Members for violations of the house rules or rules and regulations herein referred to. 6. To make reasonable rules and regulations and to amend the same from time to time. Such rules and regulations and amendments thereto shall be binding upon the Members when the Board has approved them in writing and delivered a copy of such rules and all amendments to each Member. Such rules and regulations may without limiting the foregoing, include reasonable limitations on the use of the Common Areas by guests of the Members as well as reasonable admission and other fees for such use. 7. To impose fines or penalties upon any Member who violates the Declaration, its rules and regulations or By-Laws as per Article IX (t) of the Declaration. 8. To employ workers, contractors and supervisory personnel, and to purchase supplies and equipment, to enter into contracts to provide maintenance, refuse removal and other services, and generally to have the power of Directors in connection with the matters hereinabove set forth. 9. To bring and defend actions by or against one or more Members any of their occupants and lessees pertinent to the operation of the Association and to assess special assessments to pay the cost of such litigation. 10. To hire a Managing Agent to perform and exercise the powers of the Board of Directors in the management of the Development. 11. To execute, acknowledge and deliver (i) any declaration or other instrument affecting the Properties, which the Board deems necessary or appropriate to comply with any law, ordinance, regulation, zoning resolution or requirement of any public authority, applicable to the occupancy, maintenance, demolition, construction, alteration, reapir or restoration of The Properties (ii) any consent, covenant, restriction, easement or declaration, or any amendment thereto, affecting The Properties which the Board deems necessary or appropriate. Association." 12. To obtain and review insurance for the 5 of 19 FILED:: |FILED DUTCHESS DUTCHESS COUNTY COUNTY CLERK CLERK 06/30/2020 02 2 8 /2017 06:51 08 : 52 PM AM| INDEX INDEX NO. NO. 2017-50017 2017-50017 / NYSCEF NYSCEF DOC. DOC. NO. NO. 349 7 RECEIVED RECEIVED NYSCEF: NYSCEF: 06/30/2020 02/28/2017 AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 34. Article HI. Section 11. Appointment of Board of Directors of Association as Irrevocable Managina Agent. of the By-Laws of VAN WYCK GLEN CONDOMINIUM and VAN WYCK MEADOWS CONDOMINIUM states as follows: "In order to provide uniformity of services in the Van Wyck at Merritt Park Development, the Board of Managers shall be deemed to have irrevocably appointed the Board of Directors of Van Wyck at Merritt Park Homeowners Association, Inc. to provide all services in connection with the maintenance, repair and replacement to the Common Elemeñts and to assess the Homeowners for the cost of such maintenance. All of the powers granted to the Board of Managers in connection with repairs and replacement of the Common Elements by this Declaration including, but not limited to, the power to make additions, alterations, or improvements to the Counuun Elements, collecting assessments or borrowing money to pay for such work shall remain the obligation of the Board of Managers but shall be performed by the Board of Directors of the Association as the irrevocably appointed Managing Agent of Van Wyck Glen (Meadows) Condominium. The Board of Managers shall, however, be responsible for maintaining adequate fireand liability coverage for the Homes and Common Elements as set forth herein. In the event the Board of Directors of the Association fails to perform such functions, the same." Board of Managers will be responsible for AS AND FOR A SIXTH AFFIRMATIVE DEFENSE Plaintiffs' 35. Plaintiff's complaint is invalid because the Boards are not properly constituted in accordance with the Condominium Governing Documents and Plaintiffs' therefore Boards have no authority to act. AS AND FOR A COUNTERCLAIM AGAINST THE PLAINTIFFS THE PA_RTIES 36. Van Wyck At Merritt Park Homeowners Association, Inc., is a New York Corporation duly formed and existing under the laws of the State of New York (hereinafter the "Association") with an office presently located c/o McGrath Management 6 of 19 FILED:: [FILED DUTCHESS DUTCHESS COUNTY COUNTY CLERK CLERK 06/30/2020 02 /28/2017 06:51 08 : 52 PM INDEX INDEX NO. NO. 2017-50017 2017-50017 AMJ NYSCEF NYSCEF DOC. DOC. NO. NO. 349 7 RECEIVED RECEIVED NYSCEF: NYSCEF: 06/30/2020 02/28/2017 Services, Inc. (hereinafter "McGrath"), 1906 Route 52, Hopewell Junction, New York, 12533. 37. The Association is part of a development situated on 178 acres in Town of Fishkill, County of Dutchess, State of New York, commonly known as the Van Wyck Communities. 38. The developer, or Sponsor, of the Van Wyck Communities was Toll Van Wyck, LLC, a New York Limited Liability Company. 39. The Van Wyck Commüñities consists of the Association and three (3) condominium associations known as Van Wyck Glen Condominium, Van Wyck Meadows Condominium, and Van Wyck Meadows Condominium. 40. At alltimes relevant herein, the Plaintiff, the Board of Managers of Van Wyck Glen Condominium, was an unincorporated association created upon filing of a Declaration and By-Laws pursuant to Article 9-B of the Real Property Law of the State of New York in the office of the Dutchess County Clerk. 41. At alltimes relevant herein, the Plaintiff, the Board of Managers of Van Wyck Meadows Condominium, was an unincorporated association created upon filing of a Declaration and By-Laws pursuant to Article 9-B of the Real Property Law of the State of New York in the office of the Dutchess County Clerk. 42. The third Condominium Association Van Wyck Meadows 2 is not a party to this action. 7 of 19 FILED:: [FILED DUTCHESS DUTCHESS COUNTY COUNTY CLERK CLERK 06/30/2020 02 2 8 /2017 06:51 08 : 52 PM INDEX INDEX NO. NO. 2017-50017 2017-50017 / AM| NYSCEF NYSCEF DOC. DOC. NO. NO. 349 7 RECEIVED RECEIVED NYSCEF: NYSCEF: 06/30/2020 02/28/2017 THE OPERATING DOCUMENTS OF THE PARTIES 43. The Declaration of Covenants, Restrictions, Easements, Charges and Lien, together with the By-Laws of the Association were duly filed in the Office of the Dutchess County Clerk. 44. Article I of the Declaration contains the following definitions: "Association" (a) shall mean and refer to Van Wyck Merritt Park Homeowners corporation." Associations, Inc., a New York Not-for-Profit Properties" Areas" (e) "Common or "Common shall mean and refer to certain areas of land as shown on the attached Site Plan which will be maintained by the Association and which is intended to be devoted to the conunun use and enjoyment of the owners of The Properties and shall include, without limitation, the recreational facilities, roadways and any subsequent land or roadways that may become part of the Common Property." Properties located on the Phase II "Developer" "Declarant" (g) or shall mean and refer to Toll Van Wyck, LLC, a New York Limited Liability Company and its successors and assigns, ifsuch successors and assigns should acquire an undeveloped or developed but unsold portion of the Properties for the purpose of development including, without limitation, any mortgagee Developer." which has foreclosed or acquired by other means the interests of the Property" (m) "Phase II shall mean and refer to the parcel of land contiguous to Van Wyck Meadows Condominium, upon which the Developer intends to erect additional Homes in a Condominium to be known as Van Wyck Glen Condominium and which the Developer may bring within the scheme of this Declaration as set forth in Article II,Section 2. Properties" of"Development" (n) "The shall mean and refer to all such Properties described in Article II,including the Phase II Property, if such property is brought with in Development." the scheme of the 45. The Developer, Toll Van Wyck, LLC, did bring Van Wyck Glen Condominium, and Van Wyck Meadows Condominium, within the scheme of the Association's Declaration of Covenants Restrictions, Easements, Charges and Lien, together with the By-Laws. 8 of 19 INDEX INDEX NO. NO. 2017-50017 2017-50017 FILED: FILED : DUTCHESS DUTCHESS COUNTY COUNTY CLERK CLERK 06/30/2020 02 / 2 8 /2017 06:51 08 :52 PM AM| NYSCEF NYSCEF DOC. DOC. NO. NO. 349 7 RECEIVED RECEIVED NYSCEF: NYSCEF: 02/28/2017 06/30/2020 Properties" 46. The term "The refers to and includes all the individual homes and Common Properties of the Association and Van Wyck Glen Condominium, Van Wyck Meadows Condominium and Van Wyck Meadows Condomirdüin. 47. The Properties are subject to the Declaration of Covenants, Restrictions, Easements, Charges and Lien, together with the By-Laws of the Association. 48. Article VIII of the By-Laws of the Association, Section 2, provides, in pertinent part, as follows: "The Developer shall have the right to designate a majority of the total Directors, until 95% of the Homes to be built on The Properties have been conveyed (i.e, 95% of 513 Homes). Thereafter, the Developer shall have the right to designate one (1) Director for so long as it owns one Unsold Home. When the Developer no longer owns any Unsold Home in the Development it may not designate any Directors. Developer may not cast its votes to elect any above." Directors in addition to the designated Directors set forth 49. In other words, the Developer, by virtue of designating a majority of the board of directors, controlled the Board of the Association. 50. Article III, Section 11, of the By-Laws of each of Plaintiff provides substantially as follows: "In order to provide uniformity of services in the Van Wyck at Merittt Park Development (of which Van Wyck Glen Cc:±-:··h•m is a part) the Board of Managers shall be deemed to have irrevocably appointed the Board of Directors of Van Wyck at Merritt Park Homeowners Association, Inc, to provide all services in connection with the maintenance, repair, and replacement, to the Common Elements and to assess the Homeowners for the cost of such maintenance. All of the powers aranted to the Board of Managers in connection with renairs and replauomonts to the Common Elements by this Declaration. including. but not limited to, the power to make additions, alterations, or improvements to the Common Elements. renairs. maintenance and replacements to the Common Elements. collecting assessments or borrowing money to pay for such work shall remain the obligation of the Board of Managers but shall be performed by the Board of Directors of the Association as the irrevocably appointed Managing Agent of Van Wyck Glen Cañdominium. The Board of Managers shall, however, be responsible for maintaining adequate fire and liability coverage for the Homes and the 9 of 19 FILED:: [FILED DUTCHESS DUTCHESS COUNTY COUNTY CLERK CLERK 06/30/2020 02/28/2017 06:51 08 : 52 PM AM| INDEX INDEX NO. NO. 2017-50017 2017-50017 NYSCEF NYSCEF DOC. DOC. NO. NO. 349 7 RECEIVED RECEIVED NYSCEF: NYSCEF: 06/30/2020 02/28/2017 Common Elements. In the event the Board of Directors fails to perform such same." functions, the Boards of Managers will be responsible for (Emphasis supplied). The only difference in each of said by-law provisions of Plaintiffs is that the language emphasized above in bold specifies the name of the that Condorñinium for which that by- law was formed. So for example, the above bold language in the by-laws of Van Wyck