Case Information

Board of Managers of Stewart Place Condominium, Appellant, v Angelo Bragato, Respondent. (And a Third-Party Action.)

Supreme Court, Appellate Division, Second Department, New York

June 14, 2004

8 AD3d 601 | 789 NYS2d 907

Barone, J.

In an action, inter alia, for a judgment declaring that parking spaces of the Stewart Place Condominium constitute limited common elements and cannot be rented or sold to persons who do not reside at the condominium, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Barone, J.), entered December 1, 2003, as denied that branch of its motion which was for summary judgment declaring that the parking spaces were limited common elements and cannot be rented or sold to persons who do not reside at the condominium.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff, the board of managers of a condominium located in White Plains (hereinafter the Board), seeks to preclude the defendant from renting out or selling his parking spaces located at the condominium to nonresidents. The Board contends, inter alia, that such activity is prohibited by the condominium's governing documents and poses a security risk to residents of the condominium.

The Board failed to satisfy its prima facie burden of demonstrating its entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). We agree with the Board's contention that a condominium's board of managers is statutorily empowered to enforce its bylaws, rules, and regulations (see Real Property Law § 339-j; Board of Mgrs. of Ocean Terrace Towne House Condominium v Lent, 148 AD2d 408, 409 [1989]). However, the Board did not establish, as a matter of law, that its governing documents or rules prohibit the defendant's conduct. Moreover, assuming that the governing documents or rules prohibit the defendant's conduct, there remain issues of fact relating to whether the Board waived its right to enforce the asserted prohibition (see Dice v Inwood Hills Condominium, 237 AD2d 403 [1997]). Schmidt, J.P., Santucci, Luciano and Mastro, JJ., concur.