Preview
FILED: DUTCHESS COUNTY CLERK 06/08/2021 10:50 AM INDEX NO. 2017-50017
NYSCEF DOC. NO. 423 RECEIVED NYSCEF: 06/08/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
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BOARD OF MANAGERS OF VAN WYCK GLEN
CONDOMINIUM, THE BOARD OF MANAGERS OF SUPPLEMENTAL
VAN WYCK MEADOWS CONDOMINIUM, a AFFIRMATION
Condominium created pursuant to Article 9-B of the PURSUANT TO
Real Property Law of the State of New York, on behalf COURT DIRECTIVE
of its unit owners, DATED MAY 11, 2021
Plaintiffs, Index No.: 2017-50017
-against-
Hon. Christi J. Acker
VAN WYCK AT MERRITT PARK HOMEOWNERS
ASSOCIATION, INC., ANTHONY COSTA and DICK
HACK,
Defendants.
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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.
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Anthony C. Carlini Jr., Esq. an attorney duly admitted to practice law in the State of New
York affirms the following under penalties of perjury:
1. That I am a Partner at the law firm of HANDEL & CARLINI, LLP, the attorneys for the
Plaintiffs, The Board of Managers of Van Wyck Glen Condominium (the “Glen”) and The Board
of Managers of Van Wyck Meadows Condominium (“M1”) (collectively, “Plaintiffs” or “Board
of Managers”) herein, and as such I am familiar with the facts and circumstances surrounding the
instant action.
2. This Supplemental Affirmation is submitted, as directed by the Court, in response to the
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redlined Memorandum of Law submitted by Defendants in support of their motion to reargue.
Defendants, seeking the proverbial “third bite at the apple” seek to put forward a new argument that
the HOA governing documents may not be amended to divest the HOA of its alleged management
responsibilities with respect to the Condominium Common Elements.1 Defendants have not
offered any legal support permitting them to advance this new legal argument almost two months
after the return date of their motion to reargue. In any event, there is clear legal precedent and
factual reasoning which dictate that this new argument proffered by the Defendants must be
disregarded by the Court.
I. It Is Well Established That New Arguments May Not Be Advanced On A Motion
To Reargue
3. [A] motion to reargue is not available to advance a new theory of liability, or to present
arguments different from those originally asserted" Wasson v Bond, 134 A.D.3d 1224, 1225 (3d
Dept. 2015) quoting, Blair v Allstate Indem. Co., 124 AD3d 1224, 1224-1225, 998 NYS2d 754
[2015]; see DeSoignies v Cornasesk House Tenants' Corp., 21 AD3d 715, 718, 800 NYS2d 679
[2005]. Notwithstanding, this is exactly what Defendants have done in their original papers and in
their current submission.
4. Defendants can not, under the well accepted law, claim that they annexed the HOA
Governing Documents to their original papers and therefore the Court should have searched those
papers for support for Defendants’ position. This is especially so when the Defendants themselves,
who have always had access to their own Governing Documents, did not advance the argument
which they now seek to have this Court consider.
1
This is clearly a new argument as Defendants admittedly previously argued in their reargument
motion that the HOA governing documents could be amended upon a two thirds vote of the HOA
members.
2
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5. As the Court held in Sorbonne Apartments Co. v. Kranz, 96 Misc. 2d 396, 399-400 (Civil
Court of the City of New York, Special Term, Kings County 1978):
A review of the original motion papers reveals that this point was never
raised at that time. Faced with scores of motions daily, is the court
required to search out issues not raised by the parties? This court thinks
not. While it is true that a copy of the lease was attached to the court's
papers, the court is not obliged to search out other grounds for the
granting or denial of a motion. The court is under no duty to do counsel's
job for them.
6. Consequently, the new arguments advanced in Defendants’ reargument motion and now in
this “corrected” Memorandum of Law must be disregarded by this Court.
II. The New Argument Advanced By Defendants Lacks Merit
7. Even had Defendants raised this new argument that the HOA Governing Documents can not
be amended with respect to the management of the Condominium Common Elements at the proper
time in their motion for summary judgment, it would have been demonstrated to lack merit.
8. Defendants cite to a provision in the HOA Declaration (Article IV, Section 2) which
prohibits the amendment of the HOA Declaration with respect to the HOA’s obligation to maintain
the Common Areas. The term “Common Areas” is defined in Article 1(e) of the HOA Declaration
as follows:
“Common Properties” or “Common Areas” 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 common 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 Properties located on the
Phase II Property (emphasis added).
9. Clearly, the individual homes, landscaping, utilities, etc., in the Condominiums are not
included in the definition of Common Areas as that definition is meant to include only those
common facilities enjoyed by all in the community.
3
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10. Any reference in the HOA Declaration to maintenance by the HOA of the Condominium
Common Elements, including the exteriors of the homes, landscaping and utilities is only in
conjunction with the assignment of those obligations which is only contained in the
Condominiums’ Bylaws.
11. The Condominiums were granted absolute control over the property and business
within their respective communities including the obligation to maintain and repair. The
Condominiums' Bylaws Article III, Section 5 states:
A. The property and business of the Condominium shall be managed by its
Board of Managers, which may exercise all such powers of the
Condominium and do all such lawful acts and things as are not by Statute
or by the Declaration or by these By-Laws, directed or required to be
exercised or done by the Homeowners personally. These powers shall
specifically include, but not be limited to, the following items:
2. To collect, use, and expend the assessments collected to maintain, care for
and preserve the Homes, Buildings, and other Common Elements;
12. The Powers given to the HOA are different according to its Bylaws. The HOA was
solely responsible for the "Common Areas" as defined above. The HOA Bylaws state at Article
VIII, Section 5:
(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 be limited to the following items:
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.
13. The Defendants have been unable to answer a simple question posed to them as part of these
motions. Understanding that the sponsor drafted the HOA and Condominium Governing
Documents, why would it have been necessary for the sponsor to include an assignment to the HOA
4
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of the maintenance and repair function in the Condominium Bylaws if the HOA had an independent
obligation to do so. The answer is very clear, any obligation that the HOA had to repair or maintain
Condominium Common Elements springs only from the assignment contained in Article II Section
11 of each of the Condominiums’ Bylaws. Once that assignment was stricken by the amendment of
the Condominiums’ Bylaws, the HOA was relieved of any obligation with respect to the repair and
maintenance of the Condominium Common Elements.
14. Therefore, the new argument raised by Defendants does not support their position and
should be disregarded.
III. The HOA Waived Any Right To Attack The Amendments When It Agreed To A
Settlement
15. As set forth in Plaintiffs’ papers in support of their motion for summary judgment and in
opposition to Defendants’ motion for reargument, the evidence clearly shows that the issue of
which party should be responsible for the maintenance and repair of the Condominium Common
Elements was settled as part of lengthy Court Ordered settlement negotiations. Although the Court
found it unnecessary to reach this argument on Plaintiffs’ motion for summary judgment, it is
respectfully requested that should the Court grant reargument, that the Court also consider
Plaintiffs’ arguments with respect to the HOA’s waiver of its current arguments as a result of its
agreed upon resolution of the central issue in this case.
Dated: Poughkeepsie, New York
June 8, 2021 Yours, etc.
HANDEL & CARLINI, LLP
By:_____ ________________
Anthony C. Carlini, Jr., Esq.
Attorney(s) for Plaintiffs
1984 New Hackensack Road
Poughkeepsie, NY 12603
5
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To: Jon Kolbrener, Esq.
Braverman Greenspun, P.C.
110 East 42nd Street, 17th Floor
New York, NY 10017
Vincent Camacho, Esq.
Milber Makris Plousadis & Seiden, LLP
709 Westchester Avenue, Suite 300
White Plains, New York 10604
Stacey Pitcher, Esq.
Obermayer, Rebmann, Maxwell & Hippel, LLP
9 East 40th Street, 4th Floor
New York, NY 10016
Richard S. Sklarin, Esq.
Miranda, Sambursky, Slone, Sklarin, Verveniotis, LLP
570 Taxter Road, Suite 561
Elmsford, New York 10523
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WORD COUNT CERTIFICATION
I, Anthony J. Carlini, Jr., an attorney authorized to practice in all Courts of the State of New
York, hereby certify that Pursuant to Uniform Civil Rule 202.8-b, the foregoing Supplemental
Affirmation, exclusive of this certification, the caption, and signature block, consists of 1348 words.
The word count was performed using Microsoft Word’s word count function.
_ __
Anthony C. Carlini, Jr., Esq.
7
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Preview
FILED: DUTCHESS COUNTY CLERK 06/08/2021 10:50 AM INDEX NO. 2017-50017 NYSCEF DOC. NO. 423 RECEIVED NYSCEF: 06/08/2021 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 SUPPLEMENTAL VAN WYCK MEADOWS CONDOMINIUM, a AFFIRMATION Condominium created pursuant to Article 9-B of the PURSUANT TO Real Property Law of the State of New York, on behalf COURT DIRECTIVE of its unit owners, DATED MAY 11, 2021 Plaintiffs, Index No.: 2017-50017 -against- Hon. Christi J. Acker VAN WYCK AT MERRITT PARK HOMEOWNERS ASSOCIATION, INC., ANTHONY COSTA and DICK 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 attorney duly admitted to practice law in the State of New York affirms the following under penalties of perjury: 1. That I am a Partner at the law firm of HANDEL & CARLINI, LLP, the attorneys for the Plaintiffs, The Board of Managers of Van Wyck Glen Condominium (the “Glen”) and The Board of Managers of Van Wyck Meadows Condominium (“M1”) (collectively, “Plaintiffs” or “Board of Managers”) herein, and as such I am familiar with the facts and circumstances surrounding the instant action. 2. This Supplemental Affirmation is submitted, as directed by the Court, in response to the 1 of 7 FILED: DUTCHESS COUNTY CLERK 06/08/2021 10:50 AM INDEX NO. 2017-50017 NYSCEF DOC. NO. 423 RECEIVED NYSCEF: 06/08/2021 redlined Memorandum of Law submitted by Defendants in support of their motion to reargue. Defendants, seeking the proverbial “third bite at the apple” seek to put forward a new argument that the HOA governing documents may not be amended to divest the HOA of its alleged management responsibilities with respect to the Condominium Common Elements.1 Defendants have not offered any legal support permitting them to advance this new legal argument almost two months after the return date of their motion to reargue. In any event, there is clear legal precedent and factual reasoning which dictate that this new argument proffered by the Defendants must be disregarded by the Court. I. It Is Well Established That New Arguments May Not Be Advanced On A Motion To Reargue 3. [A] motion to reargue is not available to advance a new theory of liability, or to present arguments different from those originally asserted" Wasson v Bond, 134 A.D.3d 1224, 1225 (3d Dept. 2015) quoting, Blair v Allstate Indem. Co., 124 AD3d 1224, 1224-1225, 998 NYS2d 754 [2015]; see DeSoignies v Cornasesk House Tenants' Corp., 21 AD3d 715, 718, 800 NYS2d 679 [2005]. Notwithstanding, this is exactly what Defendants have done in their original papers and in their current submission. 4. Defendants can not, under the well accepted law, claim that they annexed the HOA Governing Documents to their original papers and therefore the Court should have searched those papers for support for Defendants’ position. This is especially so when the Defendants themselves, who have always had access to their own Governing Documents, did not advance the argument which they now seek to have this Court consider. 1 This is clearly a new argument as Defendants admittedly previously argued in their reargument motion that the HOA governing documents could be amended upon a two thirds vote of the HOA members. 2 2 of 7 FILED: DUTCHESS COUNTY CLERK 06/08/2021 10:50 AM INDEX NO. 2017-50017 NYSCEF DOC. NO. 423 RECEIVED NYSCEF: 06/08/2021 5. As the Court held in Sorbonne Apartments Co. v. Kranz, 96 Misc. 2d 396, 399-400 (Civil Court of the City of New York, Special Term, Kings County 1978): A review of the original motion papers reveals that this point was never raised at that time. Faced with scores of motions daily, is the court required to search out issues not raised by the parties? This court thinks not. While it is true that a copy of the lease was attached to the court's papers, the court is not obliged to search out other grounds for the granting or denial of a motion. The court is under no duty to do counsel's job for them. 6. Consequently, the new arguments advanced in Defendants’ reargument motion and now in this “corrected” Memorandum of Law must be disregarded by this Court. II. The New Argument Advanced By Defendants Lacks Merit 7. Even had Defendants raised this new argument that the HOA Governing Documents can not be amended with respect to the management of the Condominium Common Elements at the proper time in their motion for summary judgment, it would have been demonstrated to lack merit. 8. Defendants cite to a provision in the HOA Declaration (Article IV, Section 2) which prohibits the amendment of the HOA Declaration with respect to the HOA’s obligation to maintain the Common Areas. The term “Common Areas” is defined in Article 1(e) of the HOA Declaration as follows: “Common Properties” or “Common Areas” 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 common 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 Properties located on the Phase II Property (emphasis added). 9. Clearly, the individual homes, landscaping, utilities, etc., in the Condominiums are not included in the definition of Common Areas as that definition is meant to include only those common facilities enjoyed by all in the community. 3 3 of 7 FILED: DUTCHESS COUNTY CLERK 06/08/2021 10:50 AM INDEX NO. 2017-50017 NYSCEF DOC. NO. 423 RECEIVED NYSCEF: 06/08/2021 10. Any reference in the HOA Declaration to maintenance by the HOA of the Condominium Common Elements, including the exteriors of the homes, landscaping and utilities is only in conjunction with the assignment of those obligations which is only contained in the Condominiums’ Bylaws. 11. The Condominiums were granted absolute control over the property and business within their respective communities including the obligation to maintain and repair. The Condominiums' Bylaws Article III, Section 5 states: A. The property and business of the Condominium shall be managed by its Board of Managers, which may exercise all such powers of the Condominium and do all such lawful acts and things as are not by Statute or by the Declaration or by these By-Laws, directed or required to be exercised or done by the Homeowners personally. These powers shall specifically include, but not be limited to, the following items: 2. To collect, use, and expend the assessments collected to maintain, care for and preserve the Homes, Buildings, and other Common Elements; 12. The Powers given to the HOA are different according to its Bylaws. The HOA was solely responsible for the "Common Areas" as defined above. The HOA Bylaws state at Article VIII, Section 5: (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 be limited to the following items: 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. 13. The Defendants have been unable to answer a simple question posed to them as part of these motions. Understanding that the sponsor drafted the HOA and Condominium Governing Documents, why would it have been necessary for the sponsor to include an assignment to the HOA 4 4 of 7 FILED: DUTCHESS COUNTY CLERK 06/08/2021 10:50 AM INDEX NO. 2017-50017 NYSCEF DOC. NO. 423 RECEIVED NYSCEF: 06/08/2021 of the maintenance and repair function in the Condominium Bylaws if the HOA had an independent obligation to do so. The answer is very clear, any obligation that the HOA had to repair or maintain Condominium Common Elements springs only from the assignment contained in Article II Section 11 of each of the Condominiums’ Bylaws. Once that assignment was stricken by the amendment of the Condominiums’ Bylaws, the HOA was relieved of any obligation with respect to the repair and maintenance of the Condominium Common Elements. 14. Therefore, the new argument raised by Defendants does not support their position and should be disregarded. III. The HOA Waived Any Right To Attack The Amendments When It Agreed To A Settlement 15. As set forth in Plaintiffs’ papers in support of their motion for summary judgment and in opposition to Defendants’ motion for reargument, the evidence clearly shows that the issue of which party should be responsible for the maintenance and repair of the Condominium Common Elements was settled as part of lengthy Court Ordered settlement negotiations. Although the Court found it unnecessary to reach this argument on Plaintiffs’ motion for summary judgment, it is respectfully requested that should the Court grant reargument, that the Court also consider Plaintiffs’ arguments with respect to the HOA’s waiver of its current arguments as a result of its agreed upon resolution of the central issue in this case. Dated: Poughkeepsie, New York June 8, 2021 Yours, etc. HANDEL & CARLINI, LLP By:_____ ________________ Anthony C. Carlini, Jr., Esq. Attorney(s) for Plaintiffs 1984 New Hackensack Road Poughkeepsie, NY 12603 5 5 of 7 FILED: DUTCHESS COUNTY CLERK 06/08/2021 10:50 AM INDEX NO. 2017-50017 NYSCEF DOC. NO. 423 RECEIVED NYSCEF: 06/08/2021 To: Jon Kolbrener, Esq. Braverman Greenspun, P.C. 110 East 42nd Street, 17th Floor New York, NY 10017 Vincent Camacho, Esq. Milber Makris Plousadis & Seiden, LLP 709 Westchester Avenue, Suite 300 White Plains, New York 10604 Stacey Pitcher, Esq. Obermayer, Rebmann, Maxwell & Hippel, LLP 9 East 40th Street, 4th Floor New York, NY 10016 Richard S. Sklarin, Esq. Miranda, Sambursky, Slone, Sklarin, Verveniotis, LLP 570 Taxter Road, Suite 561 Elmsford, New York 10523 6 6 of 7 FILED: DUTCHESS COUNTY CLERK 06/08/2021 10:50 AM INDEX NO. 2017-50017 NYSCEF DOC. NO. 423 RECEIVED NYSCEF: 06/08/2021 WORD COUNT CERTIFICATION I, Anthony J. Carlini, Jr., an attorney authorized to practice in all Courts of the State of New York, hereby certify that Pursuant to Uniform Civil Rule 202.8-b, the foregoing Supplemental Affirmation, exclusive of this certification, the caption, and signature block, consists of 1348 words. The word count was performed using Microsoft Word’s word count function. _ __ Anthony C. Carlini, Jr., Esq. 7 7 of 7