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[T] Board of Managers of Lido Beach Towers Condominium v. Gamiel9/10/2004
This opinion is uncorrected and will not be published in the printed Official Reports.
On March 21, 2001, Board of Managers of Lido Beach Towers Condominium (hereinafter "Plaintiff" or "the Board") commenced an action in the Civil Part of this Court against Ruchama Gamiel (hereinafter "Defendant") for prior unpaid assessments and common charges totaling $3,930.00. Defendant owned and occupied apartment 5AA/6AA of said Condominium as a second residence - her primary residence being in Manhattan. Defendant then counterclaimed for damages for breach of contract, nuisance and negligence for an amount in excess of $100,000.00 as a result of a water leakage problem that is alleged to have caused health problems as well as property damage.
Plaintiff then moved to dismiss Defendant's counterclaims based upon the Board's immunity from suit pursuant to the Lido Beach Towers Condominium By-Laws (hereinafter "the By-laws"), or, in the alternative, to dismiss due to the lapsing of the Statute of Limitations pursuant to New York Civil Practice Law and Rules (hereinafter "CPLR") § 3211(5). Through her new attorney, Defendant cross-moved to increase the ad damnum clauses of the original three counterclaims, and to add two new supplementary counterclaims.
In January 2002, before both sides had finished making their final submissions in connection with their Motions, and in order to have all issues resolved in one forum, Defendant moved for an Order pursuant to CPLR § 325(b) to remove this action from the City Court of the City of Long Beach to the Supreme Court, County of Nassau, State of New York on the ground that the City Court did not have jurisdiction over the amount involved in the counterclaim and for leave pursuant to CPLR § 3025(b) to serve an amended Answer adding two additional counterclaims. In May 2002, Supreme Court Judge Burke denied Defendant's Motion to Remove citing § 208(b) of the Uniform City Court Act which allows counterclaims "for money only, without regard to amount" to be heard in courts of limited jurisdiction. Additionally, Judge Burke severed and denied Defendant's two supplementary counterclaims with leave to commence a separate action in Supreme Court.
In June 2002, this Court was notified that Plaintiff's insurance carrier, Legion Insurance (hereinafter "the insurer"), was in "Rehabilitation/Liquidation," and as a result, all proceedings were stayed as of March 2002. The stay was finally lifted in April 2004 after multiple extensions. On May 30, 2002, while the stay was in effect and without any prior notification to this Court, the parties entered into a Stipulation Agreement wherein Defendant paid Plaintiff all Condominium management fees, assessments and charges to date. It was agreed that said Stipulation Agreement was without prejudice "to Defendant proceeding with her counterclaims..., including but not limited to, pursuing her Motion to Amend the Counterclaims." Stipulation Agreement Index No.: C-067/2001, p.1 of 2, (May 30, 2002).
On May 14, 2004, a pretrial conference was held with Plaintiff's and Defendant's attorneys. At said conference, it was agreed upon that as Defendant was no longer the owner of Condominium unit 5AA/6AA, the supplementary counterclaim which would require equitable relief would no longer be in issue and that this case can now be resolved in the City Court of the City of Long Beach. Additionally, given that it had been over two years since any papers were submitted by either side and that at the time of the stay, final arguments and submissions were not made resulting in unresolved issues, it was further agreed by both parties and this Court that Defendant would be given an opportunity to supplement her pre
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