Partner Rich Sklarin recently prevailed in a hard-fought lawsuit involving plaintiff-homeowners’ installation of an unapproved fence around the perimeter of their property within a large Westchester County condominium community that we represented.
In rejecting plaintiffs’ selective enforcement theory, Westchester Supreme Court Justice Everett granted our summary judgment motion on behalf of the Home Owners Association(HOA), as well as the relief sought in our counterclaim, by applying New York’s business judgment rule:
“Fieldpoint has made a prima facie showing that the Board acted in good faith, within the scope of its authority, and that it had a legitimate condominium purpose when it denied approval of plaintiffs’ after-the-fact non-conforming fence applications, and plaintiffs have failed to make a prima facie showing that it did not. Fieldpoint is also entitled to summary judgment on its counterclaim for plaintiffs’ immediate removal of the subject fence at their sole cost and expense.”
Additionally, the Court directed plaintiffs to make payment of all outstanding assessed monthly fines, penalties, common charges, assessments and interest due from August 2014 to the present within 20 days (totaling in excess of $35,000 for which judgment has been entered by the Clerk of the Court).
When the plaintiffs failed to timely comply with the Court’s Order regarding removal of the unauthorized fence, we moved, by Order to Show Cause, for a finding of civil contempt against the plaintiffs.
After a hearing, the Court further held plaintiffs in civil contempt for failing to comply with the express terms of the Court’s earlier Decision and Order (awarding attorney fees and costs under applicable provisions of the Judiciary Law); fortunately, plaintiffs then had the fence removed 48 hours later at their own expense.
The Court’s Decision and Order granting our client summary judgment motion is annexed hereto.