Opinion
December 26, 1991
Appeal from the Supreme Court, Monroe County, Affronti, J.
Present — Doerr, J.P., Boomer, Pine, Balio and Davis, JJ.
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 plaintiff's motion to renew, as plaintiff's 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 A.D.2d 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 A.D.2d 547).