Opinion
7741 Index 156986/12
11-29-2018
Isaac EIDA, Plaintiff–Appellant, v. BOARD OF MANAGERS OF 135 CONDOMINIUM, Defendant–Respondent.
Law Office of Robert L. Greener, New York (Robert L. Greener of counsel), for appellant. Law Offices of Charles J. Siegel, New York (Bhavleen Sabharwal of counsel), for respondent.
Law Office of Robert L. Greener, New York (Robert L. Greener of counsel), for appellant.
Law Offices of Charles J. Siegel, New York (Bhavleen Sabharwal of counsel), for respondent.
Richter, J.P., Manzanet–Daniels, Gische, Kapnick, Gesmer, JJ.
Plaintiff seeks a declaratory judgment to void defendant's alleged improper amendment of its bylaws due to failure to comply with meeting notice requirements. Defendant waived the defenses of statute of limitations and lack of standing by failing to raise them in either a pre-answer motion to dismiss or its answer (see e.g. Dougherty v. City of Rye, 63 N.Y.2d 989, 991–992, 483 N.Y.S.2d 999, 473 N.E.2d 249 [1984] ). Therefore, we reinstate the first and second causes of action, which the IAS court dismissed on those respective grounds. The merits of these causes of action are not properly before us because the court (Schlomo Hager, J.) previously rejected defendant's summary judgment motion as untimely and denied its subsequent motion for leave to file a late summary judgment motion.
The court erred in granting defendant attorneys' fees since such award was not authorized by agreement between the parties or by statute (see e.g. Chapel v. Mitchell, 84 N.Y.2d 345, 349, 618 N.Y.S.2d 626, 642 N.E.2d 1082 [1994] ), and defendant did not contend that plaintiff engaged in frivolous conduct.