Majority
p. 967Brookview Homeowners’ Association, Inc., Appellant, v Mark IV Construction Co., Inc., et al., Respondents. (Appeal No. 1.)
— Order unanimously affirmed without costs. Memorandum: Supreme Court properly concluded that the responsibility of defendant Mark IV Construction Co., Inc. to pay maintenance assessments is limited by section 5.04 of the Declaration Establishing Brookview Homeowners’ Association, Inc. to any deficit in plaintiff Association’s operating expenses. Supreme Court abused its discretion, however, in granting plaintiffs motion to renew, as plaintiffs motion was predicated upon a legal theory not advanced in its original motion for partial summary judgment or even in its complaint (see, Foley v Roche, 68 AD2d 558 , 568). Moreover, plaintiff failed to provide an explanation for its failure to produce evidence of a
p. 968
deficiency in its reserves at the time of the original motion (see, Huttner v McDaid, 151 AD2d 547 ). (Appeal from Order of Supreme Court, Monroe County, Affronti, J. — Summary Judgment.) Present — Doerr, J. P., Boomer, Pine, Balio and Davis, JJ.
Cases cited
- Foley v. Roche 68 AD2d 558 at 568 p. 967
- Huttner v. McDaid 151 AD2d 547 p. 968