Case Information

GARY SKALYO, PLAINTIFF-APPELLANT, v LAUREL PARK CONDOMINIUM BOARD OF MANAGERS, CLOVER MANAGEMENT, INC., AND MARRANO MARK EQUITY, DEFENDANTS-RESPONDENTS. (APPEAL NO. 2.)

CA 16-00505

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department

February 3, 2017

PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, CURRAN, AND SCUDDER, JJ. 125

MEMORANDUM AND ORDER

DONALD A. ALESSI, EAST AMHERST (RICHARD G. COLLINS OF COUNSEL), FOR PLAINTIFF-APPELLANT.

COLUCCI & GALLAHER, P.C., BUFFALO (RYAN L. GELLMAN OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.

Appeal from a judgment of the Supreme Court, Erie County (Frederick J. Marshall, J.), entered December 21, 2015. The judgment awarded money damages to defendants for fines and penalties incurred.

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by granting judgment in favor of defendants as follows:

It is ADJUDGED AND DECLARED that plaintiff violated section 10.09 (7) of the Declaration of Laurel Park Condominium and section 7.04 (g) of the Bylaws of Laurel Park Condominium,

and as modified the judgment is affirmed without costs.

Memorandum: Plaintiff commenced this declaratory judgment action seeking a declaration that the installation of a dog restraint system known as an "invisible fence" did not violate the provisions of the Declaration and Bylaws of Laurel Park Condominium prohibiting the alteration, addition or modification of the lot on which plaintiff's unit is located without the prior written consent of defendant Laurel Park Condominium Board of Managers. We conclude that Supreme Court properly granted defendants' motion seeking summary judgment for reasons stated in its decision. The court erred, however, in failing to declare the rights of the parties, and we therefore modify the judgment by making the requisite declaration (see Maurizzio v Lumbermens Mut. Cas. Co., 73 NY2d 951, 954).

Entered: February 3, 2017

Frances E. Cafarell Clerk of the Court