Opinion
2012-05-31
230–79 EQUITY, INC., Plaintiff–Appellant, v. Robert MANCUSO, et al., Defendants, Alan Spigelman, et al., Defendants–Respondents.
Richard Creditor LLC, Forest Hills (Richard Creditor of counsel), for appellant. Michelle S. Russo, Port Washington, for Edmund Stevens, Jr., Shari Ream Stevens and Barry L. Solar, respondents.
Richard Creditor LLC, Forest Hills (Richard Creditor of counsel), for appellant. Michelle S. Russo, Port Washington, for Edmund Stevens, Jr., Shari Ream Stevens and Barry L. Solar, respondents.
Law Office of Santo Golino, New York (Brian W. Shaw of counsel), for GBL 78th St., LLC, respondent.
Kagan Lubic Lepper Finkelstein & Gold, LLP, New York (Jesse P. Schwartz of counsel), for 240–79 Owners Corp., respondent.
TOM, J.P., ANDRIAS, SAXE, MOSKOWITZ, ACOSTA, JJ.
Order and judgment (one paper), Supreme Court, New York County (Debra A. James, J.), entered December 9, 2010, which, inter alia, granted defendant 240–79 Owners Corp.'s motion for summary judgment declaring that the cost of repairing and maintaining the subject common retaining wall shall be divided proportionately among only the parties whose properties touch upon the now damaged section of the wall and that, going forward, those parties are responsible pro rata for the maintenance and repair of only that section of the wall that touches their properties, and so declared, and granted summary judgment dismissing all causes of action, counterclaims, and cross claims against defendants Alan Spigelman and Diane Spigelman, Edward Kreps and Sharon Kreps, defendants Edmund Stevens, Jr., Shari Ream Stevens, Barry L. Solar, as trustees of the Edmund Stevens, Jr. qualified terminable interest trust for Shari Ream Stevens, and defendants Robert Mancuso, Harriet Stein Mancuso, and Bernard and Bernice Stein (collectively, 78th Street defendants), unanimously affirmed, with costs.
The motion court correctly determined that the cost of repairing and maintaining the common retaining wall should be divided proportionately among those parties whose properties touch upon the damaged section of the wall and that prospectively the parties will be responsible pro rata for the maintenance and repair of only that section of the wall that touches their property ( see Administrative Code of City of N.Y. § 28–305.1.1; Bauer v. Lovelace, 272 App.Div. 820, 70 N.Y.S.2d 336 [1947] ).
The 78th Street defendants demonstrated that the damaged section of the wall that is the subject of this action is located on the portion of the wall that abuts plaintiff's, 240–79 Owners Corp.'s, and defendant GBL 78th Street LLC's properties. There is no support in the record for plaintiff's assertion that the damage extends to portions of the wall that abut the 78th Street defendants' respective properties.