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Scott E. Mollen Scott E. Mollen

Condominiums—Declaratory Judgment Action Challenging 2015 Bylaw Barred by Statute of Limitations—Challenge Could Have Been Commenced by an Art. 78 Proceeding Within Four Months of the Bylaw’s Enactment—Complaint Served One Day Late Barred Since It Failed To Assert a Meritorious Claim—Demand for Books and Records, Including Names of Other Unit Owners and Injunction Requiring board To Provide Such Documents for Inspection Denied—Plaintiffs Failed To Show Prior Proper Demand for Those Records—Claim for Books and Records Based on Bus. Corp. L. §624 and Under Common Law Failed Based on Plaintiffs’ Failure To Allege “Demand Futility”

Plaintiffs are unit owners of a condominium managed by the Defendant Board of Managers (board). They commenced an action on behalf of themselves and derivatively on behalf of similarly-situated owners seeking (1) a declaratory judgment that a 2019 Amendment to the condominium’s declaration is void because it violates Real Property Law (RPL) §339-v; (2) a declaratory judgment that the board must maintain certain books and records and an injunction directing the board to give plaintiffs access to those books and records; (3) a declaratory judgment that the board election held in December 2018 was invalid; and (4) an injunction barring the board from holding a meeting of unit owners until there is a valid election.

The plaintiffs had filed a summons with notice on July 28, 2019 and then served it on the board by service on the Secretary of State on Sept. 30, 2019. On Oct. 18, 2019, the board served a demand for a complaint. The plaintiffs were required to serve their complaint by Nov. 7, 2019. However, they served their complaint one day late, on Nov. 8, 2019. The board had moved to dismiss the complaint based on late service of the complaint. The plaintiffs moved for a preliminary junction to enjoin the board from holding any meetings of unit owners until the “validity of the 2015 amendment to the bylaws can be determin[ed] and for immediate access to defendant’s books and records, including the names of all unit owners.”

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