Perlbinder v. Board of Mgrs. of the E. 53rd St. Condominium , 154 A.D.3d 467 ( 2017 )

Perlbinder v Board of Mgrs. of the E. 53rd St. Condominium (2017 NY Slip Op 07093)

Perlbinder v Board of Mgrs. of the E. 53rd St. Condominium

2017 NY Slip Op 07093

Decided on October 10, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 10, 2017
Richter, J.P., Gische, Kapnick, Kahn, Kern, JJ.

654039/13 -4625B 411 4625A 4625

[*1] Barton Mark Perlbinder, et al., Plaintiffs-Appellants,

v

Board of Managers of the East 53rd Street Condominium, Defendant-Respondent.

Granger & Associates LLC, New York (Raymond R. Granger of counsel), for appellants.

Meyers Tersigni Feldman & Gray LLP, New York (Anthony L. Tersigni of counsel), for respondent.

Judgment, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered May 24, 2016, bringing up for review an order, same court and Justice, entered April 21, 2016, which, to the extent appealed from as limited by the briefs, granted defendant's motion for summary judgment on its first, second, third and fifth counterclaims; ordered and declared that plaintiffs have an immediate obligation to repair existing damage in the garage unit at 411 East 53rd Street in Manhattan, to cure all issued and outstanding violations, and to maintain the garage unit; denied plaintiffs' motion to amend their answer to defendant's counterclaims; and, upon renewal, denied plaintiffs' prior motion for summary judgment on their complaint and on the first, second, third and fifth counterclaims; and bringing up for review an order, same court and Justice, entered on or about July 21, 2014, which, to the extent appealed from as limited by the briefs, denied plaintiffs' motion for summary judgment, unanimously affirmed, with costs. Appeal from the aforesaid orders, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

This appeal was timely filed, despite the fact that the initial notice of appeal was returned by the Clerk due to an error and was not refiled until more than 30 days later. The initial filing was sufficient for jurisdictional purposes, and the correction was not consequential (see CPLR 5520[c]). Moreover, plaintiffs filed their pre-argument statement and the orders that are the subject of the appeal at the same time as the initial notice of appeal, thus providing defendant with notice (see 22 NYCRR 202.5-b[f][2][ii]).

Supreme Court correctly concluded that plaintiffs were responsible for maintenance of the garage, given their judicial admission in their answer to the counterclaims that they were the sole owners of the unit and were entitled to exclusive possession of it; an August 13, 2012 letter from their counsel to defendant asserting their ownership of the garage; and article 6(c) of the Declaration and section 5.1(A)(i) of the bylaws.

Supreme Court also correctly found that, based on plaintiffs' admissions, the damages to the garage resulted from salt and chlorides tracked into it by vehicles, and that plaintiffs had made minimal effort over the years to maintain or repair it.

Plaintiffs' request for leave to amend their answer to defendant's counterclaims is denied as moot.

We have considered plaintiffs' remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 10, 2017

CLERK