Background
The Board of Managers of Washington Court Condominium sued unit owners Bernard J. Carl and others for unpaid common charges. The board moved for summary judgment as to liability and an order of reference to determine the amount due. Defendants cross-moved under CPLR 3212(f) to deny summary judgment and permit further discovery, arguing the amount claimed was overstated due to an abatement clause in the condominium bylaws. Supreme Court granted summary judgment on liability, referred the damages determination to a referee, and denied the cross-motion. The First Department affirmed.
The Court’s Holding
The board met its prima facie burden by submitting evidence of its authority to collect common charges and assessments, invoices reflecting defendants’ account history, and an affidavit from a board representative attesting to defendants’ failure to pay the outstanding balance. This is the standard package required to establish liability for unpaid condominium common charges under First Department precedent.
Defendants did not deny that at least some common charges had gone unpaid. Their sole defense was that the amount claimed was too high because an abatement clause in the bylaws entitled them to a reduction. The court held that a defense going only to the amount owed — and not to whether anything was owed — is properly resolved through an order of reference to a referee rather than as a defense to liability at summary judgment. The defendant may litigate the abatement clause’s scope before the referee.
The court also rejected defendants’ CPLR 3212(f) cross-motion. CPLR 3212(f) permits denial of summary judgment where the opposing party shows that facts essential to opposing the motion are exclusively within the movant’s knowledge and cannot yet be obtained. Defendants failed to identify any discovery that would affect the liability determination — the abatement defense, if valid, speaks only to the amount, which the referee will determine.
Key Takeaways
- A condominium board seeking to collect unpaid common charges establishes a prima facie case through evidence of its authority, the account invoices, and an affidavit of nonpayment; the burden then shifts to the unit owner to raise a triable issue as to a bona fide defense to liability.
- A defense that the amount claimed is incorrect — whether based on an abatement clause or a payment dispute — goes to the quantum of damages, not liability, and is properly resolved by an order of reference to a referee rather than as a bar to summary judgment.
- A CPLR 3212(f) cross-motion to deny summary judgment for further discovery fails when the asserted need for discovery does not relate to the liability question but only to the amount of damages.
Why It Matters
New York’s condominium boards face significant challenges collecting unpaid common charges when unit owners assert counterclaims or defenses about the board’s conduct or the assessments themselves. This decision confirms the established procedural pathway: obtain summary judgment on liability, send the damages question to a referee, and address counterclaims separately. For unit owners: bringing a well-documented abatement or overpayment defense to the referee proceeding can reduce the judgment amount, but it will not prevent summary judgment on liability when the basic fact of non-payment is undisputed. For condo boards: maintain clean records of assessments, invoices, and payment history — the prima facie package must be audit-ready.