Exhibit,Appendix: Board Of Managers Of Van Wyck Glen Condominium, The Board Of Managers Of Van Wyck Meadows Condominium, A Condominium Created Pursuant To Article 9-B Of The Real Property Law, On Behalf Of Its Unit Owners v. Van Wyck At Merritt Park Homeowners Association, Inc., Anthony Costa, Dick Hack

On January 04, 2017 a Exhibit,Appendix was filed involving a dispute between Board Of Managers Of Van Wyck Glen Condominium, The Board Of Managers Of Van Wyck Meadows Condominium, A Condominium Created Pursuant To Article 9-B Of The Real Property Law, On Behalf Of Its Unit Owners, and Anthony Costa, Dick Hack, Van Wyck At Merritt Park Homeowners Association, Inc., for Commercial - Contract in the District Court of Dutchess County.

Preview
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"4"
Exhibit
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
________ - -----------------
--·.---X
BOARD OF MANAGERS OF VAN WYCK GLEN
CONDOMINIUM, THE BOARD OF MANAGERS OF
VAN WYCK MEADOWS CONDOMINIUM, a
REPLY AFFIRMATION IN
Condominium created pursuant to Article 9-B of the PLAINTIFFS'
SUPPORT OF
Real Property Law of the State of New York, on behalf
MOTION FOR PARTIAL
of itsunit owners, SUMMARY JUDGMENT

Plaintiffs, Oral Argument Requested

VAN WYCK AT MERRITT PARK HOMEOWNERS
ASSOCIATION, INC., ANTHONY COSTA and DICK
Hon. Christi J. Acker, JSC
HACK,

Defendants.
------------------------------ --X
VAN WYCK AT MERRITT PARK HOMEOWNERS
ASSOCIATION, INC.,

Third-Party Plaintiff,

-against-

THE BOARD OF MANAGERS OF VAN WYCK MEADOWS
CONDOMINIUM II,

Third-Party Defendant.
----_________---- X
ANTHONY C. CARLINI, JR., ESQ., an admha to µactice before the Courts
attorney duly

of the State of New York, affirms the following to be true under penalty of perjury:

1. That I am a Partner at the law firm of HANDEL & CARLINI, LLP, the attorneys

for the The Board of Managers of Van Wyck Glen C.-a. 1m (the and The
Plaintiffs, "Glen")

"Plaintiffs"
Board of Mâñagers of Van Wyck Meadows Condominium ("M1") (collectively, or

"Board of Managers"), and as such I am familiar with the facts and circumstances surrounding the

instant action.

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2. This Affirmation is anbmitted in reply to the opposition filed by Defendants to

Plaintiffs'
motion for partial summary judgment and in further support for said motion.

3. As set forth hereinbelow, Defeñd=ñts, in their opposition, fail to raise any material

Plaintiffs'
issues of fact which would preclude this Court from granting motion for partial

Defendants'
summary judgment. It issubmitted that Plaintiffs are entitled to an Order dismissing

Assig=.mtl
First Counterclaim seeking declaratory relief with respect to the as well as an Order

granting Plaintiffs a monetary award in the amount of $40,696.32 together with interest thereon at

the statutory rate from January 4, 2017.

ARGUMENT

L THE ASSIGNMENT WAS PROPERLY REVOKED IN ACCORDANCE WITH
THE PROCEDURES SET FORTH IN THE GOVERNING DOCUMENTS

4. Defendants argue in Point II of their Memorandum of Law in Opposition to

Plaintiffs'
Motion for Summary Judgment ("Memo") that the assignment to the HOA of the

maintenance and repair functions of the Common Elements is irrevocable and could not be

amended without the consent of two-thirds of all homeowners within the Van Wyck Commurdty2.

This argumcñt is neither supported by the factsof the case or the governing law.

5. In addition, the fact that other Toll Brother communities have identical governing

documents, as argued by Defendants in Point VIII of their Memo, is of no relevance to this case.

Deféñdants' Parties'
A. Failure to Properly Aclm0wledge the Relevance of The Bylaws
Is Fatal to Their Argument

6. Defendants devote substantial time in their Memo to a review of the Offering Plan

and Declarations of the HOA and the three Condomisms Itis true, and Plaintiffs concede, that

The assignment referstothe assig=cnt by the Plaintiff
Board of Managcts tothe HOA of the nce and
repairfunction concerning theCem-men Elements purmurnit
to Bylaw Article Section
III, 11,
2 The domh'
"Van Wyck C=-=ity"refers tothe three(3)district phases known as Meadows 1 ("M1"), the
Glen and Meadows 2 ("M2").

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theSponsor set up the Van Wyck Community, whereby the HOA would not only be responsible

for the Common Areas, the recreational facilities,clubhouse, etc., but would also be assigned the

responaibility to maintain and repair the Common Elements, comprised of the exteriors of the

homes, roofs, lanciscaping, decks, etc. This was the Sponsor's vision of how the Van Wyck

Community should work. However, the Sponsor also envisioned that the Condorniniums would

have the ulthnate responsibility for the repair and maintenance of the Common Elements and that

the homeowners could amend the Bylaws in accordance with the procedures set forth therein.

Defendants'
7. The reliance on the Offering Plans and Declarations is misguided.

According to New York State law, itis the Bylaws that are controlling. New York Real Property

Section 339-u which governs the operation of condominiums provides:

The operation of the property shall be governed by by-laws, a
true copy of which shall be annexed to the declaration. No
modification of or amendment to the by-laws shall be valid unless
set forth in an amendmeñt to the declaration and such amendment is

duly recorded. NY CLS Real P § 339-u (emphasis added).

8. As the Second Department recently held in Keller v. Kay, 170 A.D,3d 978, 980

(2d Dept. 2019),

The administration of a [condominium's] affairs is governed

principally by its by-laws, which are, in essence, an agreement

among the individual homeowners as to the manner in which the

[condominium] will operate, and which set forth the respective
rights and obligations ofhomeowners, bothwithrespectto theirown
homes and the [condominium's] common elements (see Matter of
Olszewski v Cannon Point Assn., Inc., 148 AD3d at 1308; Gillman
v Pebble Cove Home Owners Assn., 154 AD2d 508, 508-509, 546
NYS2d 134 [1989]).

9, Interestingly, Defendants opt to disregard their own Bylaws. Defendants explicitly

state that there is no necessity to review the HOA Bylaws in any detailed way (Def Memo P. 11).

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The strategy behind such an approach is obvious. The HOA Bylaws do not support the

Defendants'
position,

10. The Defcñdâñt HOA's Bylaws describe the HOA's powers in Article VIII, Section

5. A copy of the HOA Bylaws is ausexed hereto, for the Court's convenience, as Exhibit al". A

review of the Bylaws, and specifically Article VIII, Section 5 demorwimtes that the only power

given to the HOA, by the Sponsor, related to the administration over and maintenance of the

Common Areas. The Common Areas are defiñed in the HOA Bylaws in Article II(e), which states

in a relevant part that the Common Areas are the areas that, "will be maintained by the Association

and which is intended to be devoted to the common use and enjoyment of the owners of The

Properties and shall include, without limitation, the Recreational Facilities and any subsequent

Properties..."
land or roadways that may become part of the Common

Plaintiffs' Bylaws3
11. The are different and give the Plaintiffs distinct powers over the

Elersents" Plaintiffs'
"Common as opposed to the "Coinmeñ Areas". The Bylaws describe the

Plaintiffs'
powers in Article III, Section 5 thereof. A copy of the M1 Bylaws, which is similar in

allrespects to each other Condominium's Bylaws, is annexed hereto, for the Court's convenience,

Plaintiffs'
as Exhibit "2". A review of the Bylaws demonstrates that Plaintiffs have complete

authority over the Common Elements, including but not limited to, the repair and maintmance

Plaintiffs'
functions and collection of common charges. The Bylaws refer to their Declaration for

Plaintiffs'
a definition of "Common Elements". (See Bylaw Article I,Section 4). The Declaration

Elements"
defines the "Common as:

FIFTH: Common Elements. The Common Elements of the

Community will consist of all the Comm'mity, except the Homes,
including, but without limitation, outside walls and roofs of the

3 Plaintiffs'
As setforth in n1oving papers, each of the three (3) CGñdamiñiums which make up the Van Wyck
Comarc.i"f (M1, M2 and theGlen) each have theirown Declarationand Bylaws. The DeclemEens and Bylaws mirror
each other inallrelevantaspects.

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Buildings, the land, buildings and improvements (other than the

Homes) comprising the Community (including the land under the
Homes and under the improvements), all utility or other pipes and
material located outside of the Homes.

Plaintiffs'
Relevant portions of the Declaration are annexed hereto as Exhibit "3".

12. Further, from a review of the HOA Bylaws, itis clear that there is no irrevocable

Plaintiffs'
assignment set forth therein. The Assignment at issue in this case appears only in the

Bylaws. Therefore, itis beyond dispute that,but for the Assignment, the DefendantROA's powers

are limited to maintensice of the Common Areas, as opposed to the Common Elements which

are explicitly to be maintained and administered by the Condañiiñiums. Further, contrary to

Defendants'
argument (Def Memo P. 14), it was üññêcessary for Plaintiffs to amend the HOA

Bylaws as there are no provisions in those Bylaws which give to the HOA rights to nüiintaill or

repair the Common Elements.

13. In summary, the law provides that the operation of the Condominiums and HOA is

governed by their Bylaws. The HOA's Bylaws restrict itsrights to administration, repairs and

maintenance of the Common Areas, such as the recreational facilities and clubhouse. The

Plaintiffs'
Bylaws provide them with the right and obligation to adminiater and maintain the

Plaintiffs'
Common Elements, such as the homes exteriors, roofs, landscaping etc. The Bylaws

assigned the repair and maintenance of the Common Elements to the HOA while reserving to

Plaintiffs'
Plaintiffs the responsibility for same. The homeowners determined that this Assignment

overw' 1
was not in the best interest of the Van Wyck Coiñü1üuity and therefore voted h·sly to

strike the Assignment. As a result, there is absolutely no provision in the relevant goveming

documents which provides the HOA any rights with respect to the Common Eleñ1êñts and any

issues raised in this litigation concerning the same are now moot.

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Plaintiffs'
B. Bylaws Explicitly Allow for The Amendment of The Assignment

Plaintiffs' Plaintiffs'
14, moving papers set forth the argument that Bylaws explicitly

allow for the amendment or, for that matter, the striking of the Assignment. A review of Article

Plaintiffs'
X of Bylaws demonstrates that the Sponsor drafted the Bylaws to allow for an

Plaintiffs' "super-
amendment of the Assignment. Any amendment to the Bylaws required a

majority"
vote of the homeowners, or 66 2/3% vote in favor of the amendment. As each

Condominium has itsown set of Bylaws, the homeowners within that Condominium would need

to approve an amendment to their specific Bylaws. However, ifthe Assignment was to be amended

change"
itwas deemed to be a "material of the Bylaws, requiring the addhal step of obtaining

the approval of 51% of the holders of first mortgages On units within the Condominium.

Defendants totally ignore this point and fail to address it in their opposition papers, thereby
I
!
Plaintiffs'
conceding that the Bylaws did, in fact,provide a meamkm to revoke the Assignment.

Defendants'
The argumer® to the lack merit.
contrary

Defendants'
C. Arguments Based Upon Agency Are Unavailing

15. Defendants argue in Point II of their Memo that Plaintiffs, as principal, cannot

=ibterally terminate the HOA, as agent, of the authority which was assigned to itconceming the

maintenance and repair of the Common Elements (Def Memo P. 13). In support of their

arguments, Defendants citeto one case America/Intl. 1994 Venture v. Mau, 146 A.D.3d 40 (2d

Dept, 2016), which is clearly distinguishable.

16. The Mau Court stated in itsdecision that a principal is ordinarily "always free to

relationship"
terrninate the agency Id. citing, G.K. Alan Assoc., Inc, v. Lazzari, 44 AD3d 95, 102.

It decided that the agency in that case was not terminable because the agreement at issue did not

provide the defendant the right to tcñninatc the agent. Id at 55-56. Here, to the contrary, the

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Plaintiffs'
Bylaws, in which the agency between Plaintiffs and the HOA is created, clearly

provided that the could be termina+M virtue of a enacted Bylaw amendment.
agency by duly

IL DEFENDANTS RAISE NO MATERIAL ISSUES OF FACT WITH RESPECT
PLAINTIFFS'
TO WHETHER BYLAWS WERE PROPERLY AMENDED

Defendants'
17. In Point III of Memo, Defendants argue that there is no proof that

Plaintiffs properly amended their Bylaws. This is incorrect. A review of the moving affidavits of

Lydia Parziale (NYSECF # 325) and Mark Plimley (NYSECF #321) together with the exhibits

annexed thereto demonstrate that all proper proccdares were followed in the bylaw amendmeñt

process. The meeting minutes (NYSECF #323 & #327) evidence that proof of service of the notice

of reeeting upon allhomeowners was completed, that more than 66 2/3% of unit owners, in both

M1 and the Glen, voted in favor of the amendment, and that the approval of 51% of the first

mortgage holders of each Coñdominium was obtened. Defendants offer no evidence whatsoever

demonstrating that Plaintiffs failed to comply with the amendrnent procedures set forth in their

Bylaws.

18. Since there can be no dispute that the Bylaw amendment was voted upon at a duly

called meeting and that a sufficient number ofhomeowners voted in favor thereof, the amendment

enjoys a presumption of validity. Maxwell v Theatrical Mechanical Ass'n, 54 Misc. 619, 621-22

(S. Ct. NY App Term 1907). Even if the Defendants were able to prove some technical

irreguledties in following the amendment procedures, this would not necessarily invalidate the

amendment. Caruso v Board of Mañagêrs of Murray Hill Terrace Condemi±e, 146 Misc. 2d

405 (8. Ct NY County 1990).

19. Moreover, at this time, Defendasts are barred by the Statute of Limitations from

Plaintiffs'
any attack upon the Bylaw amendments. These types of a++acks are considered

officer'
"challenges to the admidstlative act of a 'body or that could have been asserted in a CPLR

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limitations."
article 78 proceeding and are therefore subject to a four-month statute of Laker v

Assoc. of Property Owners of Sleepy Hallow Lake, Inc., 172 A.D.3d 1660, 1661 (3d Dep't 2019)

(challenge to board's adopties of rental policy could be asserted in Article 78 precêêding); Musey

v 425 E. 86 Apts. Corp., 154 A.D.3d 401, 403 (1st Dep't 2017) (challenge to board's enactment of

house rules should have been made in an Article 78 proceeding); Katz v Third Colony Corp., 101

A.D.3d 652, 653 (1st Dep't 2012) (claim challenging the appiuj.nlateness of amendments to

cooperative's bylaws should have been brought in an Article 78 proceeding). Therefore, even if

Defeñdâñts'
there were a basis to challenge the procedures employed by Plaintiffs, the attacks are

now time barred.

20. The dog bite case cited by Defendants is of no support. The Court in Foster v

Jordan, 269 A.D.2d 152 (1st Dept. 2000) merely held that an affidavit of an individual, without

personal knowledge, seeking to dispute the claim of effective servide of process should not be

relied upon. This holding has no bearing on this case.

21. The M1 unit owners voted in favor of the Bylaw amendment on November 7, 2018

and the Bylaw amendment was recorded in the Dutchess County Clerk's office on January 25,

2019. The Glen unit owners voted in favor of the Bylaw amcadment on July 9, 2019 and the

Bylaw ameñdmcnt was recorded in the Dutchess County Clerk's office on September 16, 2019.

Despite the passage of substantial time, Defendâñts never took any steps tq questión the propriety

of the Bylaw amendments and now they are precluded from doing so

PLAINTIFFS'
HL THERE WAS NO WAIVER OF ARGUMENT THAT THE
DEFENDANTS' DECLARATORY WAS MOOTED
REQUEST FOR RELIEF
BY THE BYLAW AMENDMENTS

22. Defendants argue in Point IX of their Memo that Plaintiffs have waived their

mootness argument because their pleadings were not amended to include mootness as an

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Defendants'
affinnative defense. As Plaintiffs argued in their moving papers, request for

declaratory relief concerning the Assignment is now moot by virtue of the Bylaw amendments

striking the Assignment.

23, Mootness is an issue that can be raised at any time and, in fact,itis incumbent upon

counsel to inform the court of chañged circumstaaces which render a matter moot. Gabriel v.

Prime, 30 A.D.3d 955, 956 (3d Dept. 2006), see also Matter of Weeks Woodlands Assn., Inc. v,

Dormitory Auth. ofthe State ofN.Y, 95 A.D.3d 747, 753 (Ist Dept. 2012). Meomess isa challenge

to the court's subject matter jurisdiction which is never waived. SGM Holdiñgs LLC v. Lisiak,

2015NJ. Misc.LEXIS 849 at *8 (New York Co. 2015). In fact, generally, mootness is a doctrine

related to subject matter jurisdiction and thus must be crme dered the court sua sponte. In re
by

Grand Jury Subpoenas for Locals 17, 135, 2,57 & 608 of United Brotherhood of Carpenters &

Joiners, 72 NT.2d 307, 311 (1988). The idea behind this is that courts are "precluded from

considering questions which, although once live, have become moot by passãge of time or change

in circumstances when the rights of the parties with respect to the controversy will no longer be

directly affected by the determination of the appeal". In re Anonymous, 114 A.D.3d 675, 675 (2d

Dept 2014),Statler v. Dioguardi, 2017 NT. Misc. LEXIS 2160 at *10 (Suffolk Co. 2017).

Plaintiffs'
24. The HOA asserts, without citing any law for support, that the failure to

assertthe By-Law Amendments as an affirmative defense acted as a waiver of their abilityto raise

them now. This is simply a misstatement of the law. As described above, and as is well settled

subject matter jurisdiction is never vyal yod, and the mootness doctrine is directly related to the

Plaintiffs'
Court's subject matter jurisdictics. In fact, itis not only well within right to raise

mootness at time, but a burden is placed on ecüüsel to inform the Courtwhen circumstances
any

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have changed such that a Court is deprived of subject matter jurisdiction because a particular

argument or claim has become moot. That is indisputably what has happened in this case.

25. Even ifthe mootness doctrine were required to be affirmatively pled as a defense,

Plaintiffs would not be precluded from making the argument. Although, itis well settled that, "the

failure to plead an affirmative defense, whether one enumerated in the statute or one which would

take the adicrse party by surprise results in a waiver of said defense. See Strauss v. BMW Fin.

Servs. Veh Leasing, 29 Misc. 3d 362, 364 (Kings Co. 2010). While that is a general principle, it

does not follow that a court may never consider unpled affirmative defenses. To the contrary, "the

failure to plead an affirmative defese...does not alway s preclude the consideration of such defense

in support or in defense of a motion for summary judgment. Id. SpecificaBy, "the relevant inquiry

for the court to hear the never pleaded affirmative defense is the prejudice or surprise asseeleted

defense."
with the assertion of a never pleaded affirmative Id.

26. The correspondence between the parties and this Court's Order clearly defeat any

Defendant= Plaintiffs'
claim that were surprised by the Bylaw amendments or mootness claim.

IV. THE EVIDENCE OVERWHELMINGLY ESTABLISHES THAT THE
PARTIES REACHED A SETTLEMENT ESTABLISHING A PROCEDURE TO
DECIDE WHO WOULD BE RESPONSIBLE FOR THE REPAIR AND
MAINTENANCE OF THE COMMON ELEMENTS

27. Plaintiffs lay out,in their papers, the argument that even ifDefendants had
moving

a legitimate claim that the Bylaws could not be amended, that claim was waived when the

Defendants knowingly and volüñtarily entered into a settlement agreement with Plaintiffs. The

settlement agreement established that the Plaintiffs would leave the issue of which party should be

responsible for the repair and mainteñâñce of the Common Elements to the homeowners who were

entitled to vote on the issue.

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28. Defendants, intheir opposition papers make the incredible argument that there was

no settlement reached between the parties, conceding, as they must, that such a set+!ement would

Plaintiffs'
act as a bar to their current arguments. For the reasons set forth herein, as well as in

Defendants'
moving papers, arguments must be disregarded.

29. First, the Court will recall that it oversaw the extensive seelement negotiations

undertaken by the parties in 2018 much of which took place in the courthouse. The Defendants

were represented in the settlement process by Terry Forman, Esq. and George Dieter, Esq. Both

Defendants Anthony Costa and Dick Hack were in Court for the negotiaties I was present for

all of the negotiations together with co-counsel from the fums of Obermayer Rebmaim Maxwell

& Hippel, LLP and Milber Makris Plousadis & Seiden, LLP.

Defendants'
30. argament that there was no settlement agreement is made by

Defendents'
counsel who has no personal knowledge whatsuever regarding what transpired during

Defendants'
the settlement negotiaticas. The arguments are set forth in a Memorandum of Law

and Attorney Affirmation authored by Jon Kolbrener, Esq who was not retained until April 26,

2019, well after the settlement had been reached. Mr. Kolbreñer has no personal knowledge of

the facts and his arguments therefore must be disregarded. Zuckerman v. City of New York; 49

N.Y. 2d 557, 563-64 (1980).

31, Defendants could have offered the affidavit of Terry Forman, Esq but they did not.

They could have offered the affidavit of George Dieter, Esq but choose not to, Defenclants could

have submitted their own affidavits in support of their argumcat, but none was filed. The only

logical coñclusion is that none of these individuals, who did have personal knowledge of the facts,

could swear in an affidavit that the parties did not reach a settlement as to do so would put them at

risk of perjuring themselves.

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32. Defendants argue that thisCourt's September 26, 2018 Order (Carlini Moving Aff,

order"
Ex 8) is merely a "disecvery and that itdid not evidence a partial settlement of the case.

Defendants make the argument that, notwith-±ªn4g the fact that the Order, which was entered

upon the stipülãtioñ of the parties, and which pmvided that both Plaintiffs would hold meetings to

amend their Bylaws, does not evidence a settlement, For this argument to even be considered, the

Defende1ts would have to explain why thisCourt Ordered the Plaintiffs to hold meetings to amend

their Bylaws. Clearly, the Court did not intend to stay discovery and have the Plaintiffs spend

thoüsãñds of dollars and hundreds of mañ-hours to potentially achieve an outcome that would have

Case Info

Judge

Michael G. Hayes Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

March 30, 2021

Case Filing Date

January 04, 2017

County

Parties

ALBANESE, CHRISTOPHER ANTHONY Attorney for the Plaintiff
Anthony Costa Defendant
BOARD OF MANAGERS OF VAN WYCK GLEN CONDOMINIUM Plaintiff
BURNS, DOVE ANN ELISE Attorney for the Plaintiff
CAMACHO, VINCENT JUAN Attorney for the Plaintiff
CARLINI, ANTHONY CARLOS Attorney for the Plaintiff
DAVIDSON, MANU LEILA Attorney for the Defendant
DAVIDSON, MANU LEILA Attorney for the Defendants
Dick Hack Defendant
DIETER, GEORGE R Attorney for the Defendant
DIETER, GEORGE R Attorney for the Defendants
FEINBERG, MATTHEW H. Attorney for the Plaintiff
FORMAN, TERRY SCOTT Attorney for the Defendant
FORMAN, TERRY SCOTT Attorney for the Defendants
KOLBRENER, JONATHAN Attorney for the Defendant
KOLBRENER, JONATHAN Attorney for the Defendants
PITCHER, STACEY LYNN Attorney for the Plaintiff
RODRIGUEZ, ARSENIO DAVID Attorney for the Plaintiff
THE BOARD OF MANAGERS OF VAN WYCK MEADOWS CONDOMINIUM, a Condominium created pursuant to Article 9-B of the Real Property Law, on behalf of its unit owners Plaintiff
VAN WYCK AT MERRITT PARK HOMEOWNERS ASSOCIATION, INC. Defendant
DEBORA DILLON Attorney
RICHARD SKLARIN Attorney
JAY ZEIGER Attorney
Vincent Camacho Attorney
DANIEL RODRIGUEZ Attorneys for Defendants
EVAN BRANDES Attorney
HASKEL FEINBERG Attorney
MICHAEL HAYES Attorney
LAURA BRECHER Attorney
CHRISTINA TOMASELLI Attorneys for Plaintiffs
CATHERINE BYRNE
ANTHONY CILLIS Attorney
GEORGE REPPER Attorneys for Defendants
LAURA KIM Attorney
EDMUND BURNS Attorney
HERBERT FEINBERG Attorney
LOUIS LIOTTI Attorneys for Defendants
RICHARD SHARAN Attorney
LORIN DONNELLY Attorneys for Plaintiffs
DEBRA JONES Attorneys for Plaintiffs
BETH NELSON Attorney
RICHARD SCHWARTZ Attorney

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