Opinion
01-21-2016
GOODNOW FLOW ASSOCIATION INC., Respondent, v. John A. GRAVES, Appellant.
Stanclift, Ludemann, Silvestri & McMorris, P.C., Glens Falls (John M. Silvestri of counsel), for appellant. Walsh & Walsh, LLP, Saratoga Springs (Joseph M. Walsh of counsel), for respondent.
Stanclift, Ludemann, Silvestri & McMorris, P.C., Glens Falls (John M. Silvestri of counsel), for appellant.
Walsh & Walsh, LLP, Saratoga Springs (Joseph M. Walsh of counsel), for respondent.
Before: GARRY, J.P., ROSE, LYNCH, DEVINE and CLARK, JJ.
GARRY, J.P.Appeal from an order of the Supreme Court (Buchanan, J.), entered December 3, 2014 in Essex County, which, among other things, granted plaintiff's motion for summary judgment.
Goodnow Flow is a lake located in Essex County that was created by construction of a dam. The surrounding property was subdivided into lots and sold. In 1957, plaintiff was incorporated as an nonprofit organization to acquire and lease lands for the recreational use of its members, who own the lots surrounding and abutting the lake. Plaintiff owns the lake bottom and the dam and spillway and maintains those facilities and the lake's water level. Plaintiff also engages in various other activities on behalf of its members, including stocking the lake with fish, leasing nearby lands, and maintaining a trail system on those lands. Defendant's parents purchased a lot adjoining the Goodnow Flow in 1958 and paid annual dues to plaintiff throughout the period of their ownership. Defendant obtained a partial interest following the death of his father in 1984; he acquired sole ownership in 2012. Thereafter, he refused to pay the annual dues. Plaintiff commenced this action seeking payment of the dues and late charges. Defendant counterclaimed for damages based upon allegedly negligent work performed upon a roadside ditch that had caused flooding upon his property. Plaintiff moved for summary judgment, which Supreme Court granted, awarding plaintiff damages and dismissing the counterclaim. Defendant appeals, and we affirm.
Defendant's notice of appeal states that he is appealing from the entirety of Supreme Court's order. However, as he has raised no arguments with respect to the dismissal of his counterclaim in his brief, we deem any claims with respect thereto to be abandoned (see Perkins v. Kapsokefalos, 57 A.D.3d 1189, 1191 n. 2, 869 N.Y.S.2d 667 [2008], lv. denied 12 N.Y.3d 705, 879 N.Y.S.2d 52, 906 N.E.2d 1086 [2009] ).
Defendant primarily argues that, because some of plaintiff's expenditures—such as the leasing of additional lands for members' hunting and recreational activities—do not provide a specific benefit to his property, it was error for Supreme Court to find that he is obligated to pay his assessed share of annual dues. We disagree. It is well-established law that when an owner has acquired property with "knowledge that a private community homeowners' association provides facilities and services for the benefit of community residents, the purchase of property there may manifest acceptance of conditions of ownership, among them payment for the facilities and services offered" (Seaview Assn. of Fire Is. v. Williams, 69 N.Y.2d 987, 989, 517 N.Y.S.2d 709, 510 N.E.2d 793 [1987] ; see Yankee Lake Preserv. Assn., Inc. v. Stein, 68 A.D.3d 1603, 1604, 893 N.Y.S.2d 300 [2009], lv. denied 15 N.Y.3d 706, 2010 WL 3431099 [2010] ). In such cases, an implied contract arises under which the owner is obligated "to pay a proportionate share of the full cost of maintaining those facilities and services, not merely the reasonable value of those actually used by [the owner]" (Seaview Assn. of Fire Is. v. Williams, 69 N.Y.2d at 989, 517 N.Y.S.2d 709, 510 N.E.2d 793 ). Moreover, absent a showing of bad faith or breach of fiduciary obligations, courts will not substitute their judgment for that of a community or homeowners' association with respect to the wisdom of their expenditures (see Matter of Levandusky v. One Fifth Ave. Apt. Corp., 75 N.Y.2d 530, 538, 554 N.Y.S.2d 807, 553 N.E.2d 1317 [1990] ; Bluff Point Townhouse Owners Assn., Inc. v. Kapsokefalos, 129 A.D.3d 1267, 1268, 11 N.Y.S.3d 341 [2015], lv. denied 26 N.Y.3d 910, 2015 WL 6457154 [2015] ).
To the extent that defendant also argues that plaintiff does not constitute a homeowners' association, but, rather, a voluntary fishing and hunting club, such argument is unpreserved for our review (see Science Applications Intl. Corp. v. Environmental Risk Solutions, LLC, 132 A.D.3d 1161, 1168–1169, 18 N.Y.S.3d 751 [2015] ). Defendant did not raise this argument before Supreme Court, and, in fact, consistently referred to plaintiff as a homeowners' association in his opposition papers.
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Plaintiff met its prima facie burden of entitlement to summary judgment by submitting, among other things, the affidavit of its president in which he recounted the history of plaintiff and averred that it has been in existence since at least 1957, well before defendant obtained sole title to his lot in 2012. The bylaws that were in effect at the time that defendant obtained title were also submitted; they required members to pay dues and listed among plaintiff's purposes "[t]o provide outdoor recreation for members of [plaintiff], their families and their guests" and "[t]o lease land adjacent to the Goodnow Flow for hunting, fishing and other recreational purposes." Plaintiff further submitted photographs of signage posted at conspicuous locations around the lake, such as a parking lot and a boat launch, which indicated that the lake and amenities were for the exclusive use of plaintiff's members. In opposition, defendant did not dispute that he had knowledge of plaintiff's existence or activities on behalf of its members at the time that he took title to the lot, but instead merely contested certain expenditures by plaintiff that he deemed imprudent and "unnecessary" because, in his view, they offered no benefit to his property. Thus, as defendant failed to raise a triable issue of fact, we find no error in Supreme Court's holding that an implied contract existed between the parties (see Seaview Assn. of Fire Is. v. Williams, 69 N.Y.2d at 989, 517 N.Y.S.2d 709, 510 N.E.2d 793 ; Perkins v. Kapsokefalos, 57 A.D.3d at 1192, 869 N.Y.S.2d 667 ; compare Yankee Lake Preserv. Assn., Inc. v. Stein, 68 A.D.3d at 1604–1605, 893 N.Y.S.2d 300 ).
Finally, defendant's argument that he should have been allowed to conduct additional discovery prior to Supreme Court ruling on the motion is unpreserved (see Hush v. Taylor, 84 A.D.3d 1532, 1533, 923 N.Y.S.2d 284 [2011] ).
ORDERED that the order is affirmed, with costs.
ROSE, LYNCH, DEVINE and CLARK, JJ., concur.