SUPREME COURT: COUNTY OF CHAUTAUQUA
PACKARD ESTATES HOMEOWNERS'
vs Index #H-06716
JAMES V. PAIGE, JR.,
WRIGHT, WRIGHT & HAMPTON
(Edward P. Wright, Esq.
of Counsel) for Plaintiff
DAVID KOWALSKI, ESQ.
Attorney for Defendant
DECISION and ORDER
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
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
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 That motion was withdrawn because of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
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
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
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
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.