By Iannacci, J.P.; Wooten, Voutsinas, Wan, JJ.
72 POPLAR TOWNHOUSE, LLC, app, v. BOARD OF MANAGERS OF THE 72 POPLAR STREET CONDOMINIUM, def, RON SION, ETC., ET AL., res — (Index No. 501530/20) Cole Schotz P.C., New York, NY (Cameron A. Welch and Matthew A. Barish of counsel), for appellant. Belkin Burden Goldman, LLP, New York, NY (Magda L. Cruz, Robert T. Holland, and Sherwin Belkin of counsel), for respondents. In an action, inter alia, to recover damages for breach of contract and fraud, the plaintiff appeals from an order of the Supreme Court, Kings County (Leon Ruchelsman, J.), dated March 1, 2021. The order granted the motion of the defendants Ron Sion, Amy Lee, Michael Rosner, Rakesh Mangat, and Tora Fisher Buckworth for summary judgment dismissing the complaint insofar as asserted against them. ORDERED that the order is modified, on the law, by deleting the provision thereof granting those branches of the motion of the defendants Ron Sion, Amy Lee, Michael Rosner, Rakesh Mangat, and Tora Fisher Buckworth which were for summary judgment dismissing the third cause of action and so much of the fourth cause of action as sought damages for the overassessment of common charges for the period of time before the bylaws were amended insofar as asserted as against them, and substituting therefor a provision denying those branches of the motion; as so modified, the order is affirmed, with costs to the respondents. The plaintiff is the owner of a condominium unit in a building known as 72 Poplar Street Condominium (hereinafter the Condominium) and managed by the defendant Board of Managers of the 72 Poplar Street Condominium (hereinafter the Board). The building was converted to residential use in 2014, and a declaration of condominium dated March 4, 2015, was recorded on April 3, 2015. The plaintiff acquired its unit in 2017. In November 2018, the plaintiff’s principal notified the Board that the Condominium had been overcharging the plaintiff for common charges. The Board thereafter advised the plaintiff that, after review, it had determined that there was a discrepancy between the Condominium bylaws that had been recorded by the sponsor with the declaration (hereinafter the recorded bylaws) and the Condominium bylaws that had been included with the Condominium’s offering plan (hereinafter the plan bylaws) with regard to the method by which common charges were computed and assessed to each unit owner, and that the plaintiff had been billed in accordance with the method set forth in the plan bylaws. In January 2019, the Board recalculated the plaintiff’s common charges based upon the recorded bylaws and issued a refund to the plaintiff in the amount of $2,867.76. In March 2019, the Board called a special meeting at which the unit owners voted to amend the Condominium’s bylaws to change the method by which common charges were calculated and assessed to each unit owner so as to conform with the method set forth in the plan bylaws. The plaintiff subsequently commenced this action against the Board and the defendants Ron Sion, Amy Lee, Michael Rosner, Rakesh Mangat, and Tora Fisher Buckworth (hereinafter collectively the individual defendants), who are each unit owners and members of the Board. The plaintiff alleged, inter alia, that the amendment constituted a breach of the Condominium’s governing documents and a breach of the Board’s fiduciary duties. The individual defendants moved for summary judgment dismissing the complaint insofar as asserted against them on the ground that it failed to state a cause of action against them. In an order dated March 1, 2021, the Supreme Court granted the motion. The plaintiff appeals.
