SUPREME COURT: COUNTY OF CHAUTAUQUA

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PACKARD ESTATES HOMEOWNERS'

ASSOCIATION, INC.

Plaintiff,

vs Index #H-06716

JAMES V. PAIGE, JR.,

DEVELOPMENT CORPORATION

Defendant

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WRIGHT, WRIGHT & HAMPTON

(Edward P. Wright, Esq.

of Counsel) for Plaintiff

DAVID KOWALSKI, ESQ.

Attorney for Defendant

DECISION and ORDER

GERACE, J.

On the eve of trial, defendant moved for summary

judgment motion. In discussions with counsel, the Court

indicated that the initial papers would justify partial

summary judgment in favor of defendant on the question of

future units, and a trial on the issue of liens,

recreational unit, unfinished patios, boat slips, and other

issues.

At the request of plaintiff, the Court adjourned the

trial and permitted plaintiff leave to file supplemental

affidavits based on information presented by defendant one

or two days before trial as a result of earlier discovery

demands.

Plaintiff's initial discovery demands of August 19,

1993 included a demand for financial records. None were

received, whereupon plaintiff made a motion January 7, 1994

to compel discovery. That motion was withdrawn because of

defendant's partial compliance on the eve of the motion.

Later, plaintiff made a further motion for production

of records and demanded an EBT. Defendant did not produce

the requested papers at the EBT.

On September 19, 1994 plaintiff also brought a motion

to comply with interrogatories.

It is clear that defendant has been less than

cooperative throughout the pre-trial process.

Recently, plaintiff requested transfer gains tax

returns and worksheets which defendant furnished the last

week of September which prompted the most recent

submission. It should also be noted plaintiff contends

that "some", but not all, returns and worksheets have been

furnished.

The documents indicate that construction on all units

had commenced. Defendant has maintained that the units

were not, nor did they have to be built; therefor he was

not obligated for assessments on these future units.

The tax returns show that construction was started on

all 37 units. Buildings I and II were started in December,

1985 and indicate 12 units in I and 7 in II. Building III

started construction on May 15, 1987 with 18 units.

The ledger sheets with the returns also indicate

construction was started although these documents show

somewhat different starting dates; Buillding II shows a

July 8, 1986 date and Building III an April 12, 1987 date.

Plaintiff seeks assessments from April, 1987 - August,

1989. Defendant's own papers show construction well before

April, 1987 which indicates construction was contemplated.

The second submission received is an affidavit from

Geoffrey Bond, plaintiff's treasurer in 1991. He indicates

that he wrote defendant in 1991 advising him the

assessments on the future units from March, 1987 on needed

to be paid.

He indicates he relied on the language in the offering

in sending this letter and in making his purchase on his

own unit as well as the language about the future units in

the Homeowners' Association Declaration. He also relied on

the many times defendant represented his intention to build

37 units.

The discovery supplied sufficient evidence to support

plaintiff's position regarding future units and justifying

a denial of defendant's motion for summary judgment.

The Court notes that submissions were received from

Wright on October 2nd and 6th, but nothing has ever been

received from defendant concerning these newest

submissions.

There are questions of fact here. Defendant drew the

documents in issue so they must be construed against him.

Defendant's motion for summary judgment is denied,

with $100 costs awarded to plaintiff.

This case is ordered on the calendar for trial; jury

selection is ordered for January 19, 1996.

THIS IS THE DECISION AND ORDER OF THIS COURT. NO FURTHER

ORDER SHALL BE NECESSARY. PLAINTIFF'S COUNSEL MUST PRESENT

TO THE COURT FOR FILING BY THE COURT A RECITAL OF THE

PAPERS SUBMITTED BY ALL PARTIES ON THIS MOTION PURSUANT TO

CPLR 2219, AND FURNISH A COPY THEREOF TO OPPOSING COUNSEL

WITH SERVICE OF A NOTICE OF ENTRY OF THIS DECISION AND

ORDER PURSUANT TO CPLR 5513.

Dated: November , 1995

Mayville, New York

____________________________

JOSEPH GERACE

Supreme Court Justice

To all Counsel:

Please take notice that a DECISION and ORDER of

which the within is a copy, is duly granted in the above

entitled action on the day of , 1995, and

duly entered in the office of the Clerk of the County of

Chautauqua on the same date.

THIS NOTICE IS NOT INTENDED TO SUBSTITUTE FOR NOTICE

OF ENTRY REQUIRED BY CPLR 5513.