Brookview Homeowners' Ass'n v. Mark IV Construction Co., 178 A.D.2d 967

— Order unanimously affirmed without costs. Memorandum: Supreme Court properly concluded that the responsibility of defendant Mark IV Construction Co., Inc. to pay maintenance assessments is limited by section 5.04 of the Declaration Establishing Brookview Homeowners’ Association, Inc. to any deficit in plaintiff Association’s operating expenses. Supreme Court abused its discretion, however, in granting plaintiffs motion to renew, as plaintiffs motion was predicated upon a legal theory not advanced in its original motion for partial summary judgment or even in its complaint (see, Foley v Roche, 68 AD2d 558, 568). Moreover, plaintiff failed to provide an explanation for its failure to produce evidence of a deficiency in its reserves at the time of the original motion (see, Huttner v McDaid, 151 AD2d 547). (Appeal from Order of Supreme Court, Monroe County, Affronti, J. — Summary Judgment.) Present — Doerr, J. P., Boomer, Pine, Balio and Davis, JJ.

Case Details

Case Name: Brookview Homeowners' Ass'n v. Mark IV Construction Co.

Court Name: Appellate Division of the Supreme Court of the State of New York

Date Published: Dec 26, 1991

Citations: 178 A.D.2d 967; Appeal No. 1

Docket Number: Appeal No. 1

Court Abbreviation: N.Y. App. Div.