Plaintiff Residential Committee of the Board of Managers of The Sycamore, a Manhattan condominium association, commenced this action against defendant 250 East 30th Street Owners, LLC, the sponsor of its condominium offering plan, challenging a provision in the offering plan that provided unit purchasers the opportunity to acquire rights to use storage bins in the basement for a one-time license fee to be paid to the Sponsor, plus a nominal monthly fee to be paid to the condominium.

Pursuant to CPLR 3212, plaintiff now moves for an order granting it partial summary judgment on the first, third and fourth causes of action in the Amended Complaint for a declaratory judgment that the Sponsor has no right to the payment of the storage bin license fee, disgorgement of the license fees already received by the Sponsor, and payment by defendants Kennelly [*2]Development Company, LLC (Kennelly Development) and James Kennelly for the fair use and occupancy of several of the storage bins.

Defendants cross-move for an order granting them partial summary judgment on their first counterclaim for a declaratory judgment affirming the Sponsor's right to retain the license payments it has collected to date, and to continue to collect those license payments.

The Sycamore is an unincorporated condominium association formed under Article 9-B of the New York Real Property Law (the Condominium Act) (Amended Complaint,

¶ 1). It operates a 14-story and cellar mixed-used building located at 250 East 30th Street, New York, New York (the Building), consisting of 80 residential condominium units (the Residential Units) and one commercial condominium unit (id., ¶ 6).

The Residential Units were sold to the public by the Sponsor, pursuant to a Condominium Offering Plan (the Offering Plan). All of the Residential Units that were offered for sale were successfully sold by the Sponsor. Defendant Kennelly Development is believed to be the successor to one of the principals of the Sponsor, and is the owner of The Sycamore's commercial condominium unit. Defendant James Kennelly is a principal of the Sponsor.

The Sycamore was formed on September 9, 2003 upon the filing of its Declaration of Condominium (the Declaration) by the Office of the City Register of The City of New York. Between that date and February 11, 2004, when the first Annual Meeting of purchasers of Residential Units (the Residential Unit Owners) was held and a Board of Managers consisting of a majority of Residential Unit Owners was elected, The Sycamore was apparently fully controlled and operated by the Sponsor and its representatives.

In accordance with Article 6 of the Declaration, the affairs of the residential area of the Building, comprised of the 80 Residential Units and the areas in the Building that service those units, are governed by plaintiff, the Residential Committee of the Board of Managers of The Sycamore.

The Sponsor filed the Offering Plan and seven amendments with the New York State Department of Law (the Attorney General's Office). The first offering to the public was on May 5, 2003. Pursuant to the terms of the Offering Plan, the Sponsor constructed 22 storage bins (the Storage Bins) in the basement of the Building. The Storage Bins are intended to house the personal belongings of Residential Unit Owners. Under the express provisions of the Offering Plan, Residential Unit Owners who wished to use a Storage Bin had to pay the Sponsor a license payment (the Storage Bin License Payment) for the right to enter into a Storage Bin License Agreement with plaintiff:

Sponsor is installing 24 Storage Bins in the Cellar of the Building. Sponsor is offering on a first-come first-served basis, to Purchasers under this Plan, the right to use a Storage Bin under a license agreement with the Board of Managers (each, a "Storage Bin License Agreement"). Prices for the right to enter into a Storage Bin License Agreement are included on Schedule A-1 of this Plan.

Unit Owners will be obligated to pay a Storage Bin License Payment to Sponsor for [*3]the right to enter into a Storage Bin License Agreement, and a nominal monthly Storage Bin License Fee to the Board of Managers for the use of the Storage Bin under the License Agreement.

The Storage Bin License Agreements also provide for payment of a monthly fee to plaintiff, which Section 5.1 (g) of The Sycamore's By-Laws sets at $10 per month for the first three years of The Sycamore's operation.^[FN1] All provisions of the Offering Plan, including those relating to the Storage Bins, were adopted and incorporated into the purchase agreements entered into by the Sponsor with each purchaser of a Residential Unit (see Purchase Agreement, § 1c ["Purchaser understands that Purchaser and Sponsor are treating the entire content of the Plan and any filed amendments thereto as if it were included in this Agreement" [Strianese Aff., Exh C]).

To date, six Residential Unit Owners have paid the Sponsor a Storage Bin License Payment, and have entered into Storage Bin License Agreements with plaintiff all during the initial sales period.^[FN2] Those agreements are between "the Residential Committee of the Board of Managers of The Sycamore Condominium" as Licensor, and the individual Residential Unit Owner as Licensee. Each of those agreements are signed on behalf of plaintiff by James Kennelly, as "President." The remaining storage bins are available for sale.

The Declaration also contains several provisions relating to the Storage Bins. Specifically, the Declaration denominates the Storage Bins and the storage area in which they are located as Residential Common Elements under the control of plaintiff. Thus, section 4.2 of the Declaration provides that:

These are Common Elements of the Building that are located in or exclusively serve the Residential Area and are not General Common Elements, Non-Residential Common Elements or Limited Common Elements. They include, without limitation, the following:

(a) Storage Bin area, Storage Bins, compactor room, locker room and superintendent's office and workshop on cellar level.

The Residential Committee shall, if any question arises, determine the purpose for which a Residential Common Element or a Limited Common Element appurtenant [*4]to a Residential Unit, is intended to be used. The Residential Committee shall have the same right to regulate access to Residential Common Elements, including, without limitation, the Storage Bins, and to promulgate rules and regulations regulating and scheduling use of the Residential Common Elements, as the Board of Managers has with respect to the General Common Elements, pursuant to Section 5.1(b) of this Declaration. Notwithstanding the foregoing, neither the Board of Managers nor the Residential Committee may eliminate the Storage Bins without the consent of 2/3 of the Unit Owners who at the time such elimination is sought are parties to a Storage Bin License Agreement.

The affairs of the Residential Area shall be governed and controlled by the Residential Committee, as described in the By-Laws. When the Residential Committee is authorized or obligated to act it shall be acting on behalf of all Residential Unit Owners.

Under the Offering Plan and Declaration, a unit owner who is a party to a Storage Bin License Agreement may, upon the sale of a residential unit, assign the License Agreement to the purchaser. The Offering Plan and Declaration provide that, if a unit owner sells a residential unit without assigning the Storage Bin License Agreement to the purchaser, the right to use the Storage Bin reverts to plaintiff (see Offering Plan, § Q). The Offering Plan and Declaration grants no such reversionary right to plaintiff with respect to unsold Storage Bins.

Several years after the condominium became effective, plaintiff now contests the provisions of the Offering Plan requiring the payment of a Storage Bin license fee to the Sponsor, and urges this court to deem the arrangement violative of law, deny the Sponsor its right to collect Storage Bin License Payments, and direct the Sponsor to disgorge fees received from certain Residential Unit Owners.

Plaintiff moves for summary judgment on its first, third and fourth causes of action. In its first cause of action, plaintiff seeks a declaratory judgment declaring that plaintiff, as the body which has sole authority over Residential Common Elements in The Sycamore condominium, is entitled to enter into Storage Bin License Agreements with Unit Owners, without requiring the licensees to pay a fee to the Sponsor.

In its third cause of action, plaintiff alleges that defendants Kennelly Development and/or James Kennelly are using several of the storage bins for the storage of their personal property, without plaintiff's permission or consent, without a license from plaintiff, and without the payment of any license fee by them to plaintiff (Amended Complaint, ¶¶ 18-19). Plaintiff seeks payment for the fair use and occupancy of the Storage Bins by these defendants.

In the fourth cause of action, plaintiff seeks disgorgement of all license payments received by the Sponsor.

Defendants cross-move for summary judgment on their first counterclaim, in which they seek [*5]the issuance of a declaratory judgment declaring that the Sponsor is entitled to sell the right to enter into a Storage Bin License Agreement with plaintiff with respect to the remaining Storage Bins.

In support of its motion for partial summary judgment on its first cause of action, plaintiff contends that the Storage Bins and the Storage Bin area in which they are located are Residential Common Elements. According to plaintiff, they are owned, pro rata, by the Residential Unit Owners and, pursuant to the Declaration, they are to be regulated by plaintiff, which has the sole authority for regulating Residential Common Elements. Plaintiff contends that it is therefore the only party who is entitled to charge a fee for the use of Storage Bins, and therefore, the Sponsor is not entitled to sell the right to enter into a Storage Bin License Agreement with plaintiff with respect to the remaining Storage Bins, as provided in the Offering Plan. Plaintiff contends that the imposition of that fee is contrary to the provisions of both the Condominium Act, and of the Declaration. Indeed, plaintiff argues, there is no mention in the Declaration or the By-Laws about any obligations on the part of any party to pay a fee to the Sponsor to license a Storage Bin.

Defendants oppose plaintiffs' motion for summary judgment on the ground that, pursuant to the express provisions of the Offering Plan, the Sponsor had the right to collect Storage Bin License Payments, and has the right to continue to do so with respect to the remaining Storage Bins. Thus, defendants argue, because the long-standing Storage Bin arrangement was clearly disclosed in the Offering Plan, as adopted by the Unit Owners' Purchase Agreements, plaintiff's motion must be denied, and their cross motion for summary judgment on their first counterclaim seeking a declaration that the Sponsor has a right to continue to collect Storage Bin License Payments should be granted.

Plaintiff's motion for summary judgment on its first cause of action is denied, and the defendants' cross motion for summary judgment on its first counterclaim is granted. As set forth below, because the Offering Plan, the Declaration and the By-Laws formed part of a single transaction, they must be read together and reconciled. The express terms of the Offering Plan, read together with the Declaration and By-Laws, establish that a purchaser of a Residential Unit desiring access to a Storage Bin was required to execute a Storage Bin License Agreement with plaintiff and to pay to the Sponsor a fee for the privilege of entering the Storage Bin License Agreement. Thus, the Sponsor had the right to collect Storage Bin License Payments, and has the right to continue to do so.

In New York, the creation and administration of condominiums are governed by the provisions of the Condominium Act (Real Property Law Article 9-B, § 339-d et seq.; see Pekelnaya v Allyn, 25 AD3d 111 [1st Dept 2005]). The condominium form of ownership of real property is manifested as a division of a parcel of real property into individual units and common elements in which an owner holds title in fee to his individual unit as well as an undivided interest in the common elements of the parcel (see e.g. Murphy v State of New York, 14 AD3d 127 [2d Dept 2004]; Susskind v 1136 Tenants Corp., 43 Misc 2d 588 [Civ Ct, NY County 1964]). A parcel of real property becomes a condominium, and is thus subject to the jurisdiction of the Condominium Act, by the filing of a declaration of condominium (RPL § 339-n). Once created, the administration of the condominium's affairs is governed principally by its by-laws, which are, in essence, an agreement among all of the individual unit owners as to the manner in which the condominium will operate, and which set forth the respective rights and obligations of unit owners, both with respect to their [*6]own units and the condominium's common elements (Murphy v State of New York, 14 AD3d 127, supra; Schoninger v Yardarm Beach Homeowners Assn., 134 AD2d 1 [2d Dept 1987]).

Plaintiff argues that its motion for summary judgment on the first cause of action must be granted because, pursuant to the "scheme" set forth by the Sponsor in the Offering Plan, the fact that the Sponsor, and not plaintiff, determines whether there will be access to the Storage Bins is allegedly in direct conflict with the provisions of the Condominium Act. The Court disagrees. Plaintiff fails to cite to any specific provision of the Condominium Act in support of this argument. Moreover, a close reading of the Condominium Act reveals no provision prohibiting the scenario set forth in the Offering Plan.

Indeed, the Offering Plan, like all offering plans to sell condominium units in New York, was submitted to the Attorney General's Office for review and filing pursuant to law (General Business Law § 352-e). Under the statute, before a sponsor may offer condominium units for sale, an offering plan must be submitted to the Attorney General's Office for review and comment, a process that often takes many months (id.). Only after the Attorney General is satisfied is a plan accepted for filing and sales of units allowed (id.).

Here, the offering followed the statutory scheme of extensive Attorney General review. The approach to the Storage Bin offering challenged in this case was prominently disclosed, and the Offering Plan and seven amendments were accepted for filing by the Attorney General. Reviewing courts give substantial deference to the Attorney General's review of offering plans (421 Hudson Street Tenants Assn. v Abrams, 140 Misc 2d 166 [Sup Ct, NY County 1988] [applying the arbitrary and capricious standard to a court's review of the Attorney General's determination]).

A review of the Offering Plan reveals that it clearly discloses and describes all salient provisions of the Storage Bin license arrangement challenged here. Every Residential Unit Owner that purchased a unit from the Sponsor entered into a Purchase Agreement with the Sponsor which explicitly stated that "Purchaser understands that Purchaser and Sponsor are treating the entire content of the [Offering] Plan and any amendments thereto as if it were included in this Agreement" (Purchase Agreement, § 1c). Thus, every Residential Unit owner who purchased an apartment from the Sponsor agreed to the terms and conditions of the Offering Plan (see Goldberg v KZ 72nd, 171 AD2d 525 [1st Dept 1991] [residential unit owners were subject to the terms and conditions of an offering plan, where the plan was incorporated into residential unit owners' purchase agreements]). Accordingly, plaintiff's contention that the Offering Plan "has no relevance" after the Residential Unit Owners purchased their units and the offering was completed (Pl Br., at 10) is without merit. The Residential Unit Owners agreed to be bound by the Offering Plan in the Purchase Agreements through which they acquired their interest in the Condominium (see id.).

Moreover, it is clear that the Offering Plan, Declaration and the By-Laws were designed to effectuate the same purpose and were part of the same transaction. The Declaration and By-Laws are attached to and included in the Offering Plan (Offering Plan, at 210, 235). The Offering Plan and By-Laws contain a number of relevant related provisions. For example, the Offering Plan provides that plaintiff may charge a "nominal" monthly fee under the Storage Bin License Agreements (id., § C4). The By-Laws set the amount of that nominal fee at $10 per month (By-Laws, § 5.1 [g]). The Offering Plan also makes clear that upon re-sale of units, Storage Bins not transferred to purchasers revert to plaintiff (Offering Plan, § Q).

New York law "requires that all writings that form part of a single transaction and are [*7]designed to effectuate the same purpose be read together, even though they were executed on different dates and were not all between the same parties" (Gordon v Vincent Youmans, Inc., 358 F2d 261, 263 [2d Cir 1965], citing Nau v Vulcan Rail & Constr. Co., 286 NY 188 [1941]; accord Sharper Prop. Enter., Inc. v Hubbard Sand & Gravel, Inc., 12 AD3d 494 [2d Dept 2004]; Dillon v Dean, 236 AD2d 360 [2d Dept], lv dismissed 89 NY2d 1085 [1997]; BWA Corp. v Alltrans Express U.S.A., Inc., 112 AD2d 850 [1st Dept 1985]). A condominium offering plan, declaration and by-laws are integrated documents that are intended to be read together (see Borress & Borress LLC v CSJ LLC, 27 AD3d 287, 288 [1st Dept 2006] [offering plan "considered part of integrated documents entered into at the same time and intended to be read together"]; Lesal Associates v Board of Managers of Downing Court Condominium, NYLJ, February 11, 2003, at 21, col 2 [Sup Ct, NY County, Diamond, J.], affd 309 AD2d 594 [1st Dept 2003] ["Since they were all part of the same transaction, it is entirely appropriate to read the Offering Plan, the Declaration and the Bylaws together"]). Thus, here, the Offering Plan, the Declaration and the By-Laws must be read and interpreted together, "it being said that they are, in the eye of the law, one instrument" (BWA Corp. v Alltrans Express U.S.A., 112 AD2d at 852]; accord Tollinger v Ithaca Gun Co., Inc., 161 AD2d 862 [3d Dept 1990]).

The New York Court of Appeals has consistently held that "when parties set down their agreement in a clear, complete document, their writing should as a rule be enforced according to its terms" (W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]; accord South Rd. Assoc., LLC v International Business Machs. Corp., 4 NY3d 272 [2005]; Cellular Tel. Co. v 210 East 86th Street Corp., 44 AD3d 77 [1st Dept 2007]). Thus, construction of an unambiguous contract is a matter of law, and the intention of the parties may be gathered from the four corners of the instrument and should be enforced according to its terms (see Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470 [2004]). The court should "construe the agreements so as to give full meaning and effect to the material provisions" (Excess Ins. Co. Ltd. v Factory Mut. Ins. Co., 3 NY3d 577, 582 [2004]). A court should not adopt an interpretation which would leave any provision without force and effect (see Beal Sav. Bank v Sommer, 8 NY3d 318 [2007]) Furthermore, a contract should be "read as a whole, and every part will be interpreted with reference to the whole; and if possible it will be so interpreted as to give effect to its general purpose" (Matter of Westmoreland Coal Co. v Entech, Inc., 100 NY2d 352, 358 [2003] [citations omitted]; Madison Hudson Assoc. LLC v Neumann, 44 AD3d 473 [1st Dept 2007]).

In accordance with these well-understood principles of contract interpretation, it is apparent that the Offering Plan, as adopted and incorporated into the Purchase Agreements, is clear and unambiguous, and should be enforced according to its terms. Reading the Offering Plan, the Declaration and the By-Laws together as one instrument, it is also clear that there is no conflict between these documents.

Sections A1 and C4 of the Offering Plan expressly establish the Sponsor's right to collect a Storage Bin License Payment from Residential Unit Owners. Plaintiff contends that the terms of the Offering Plan conflict with Section 5.1 (c) of the Declaration, which delegates to plaintiff the sole authority to regulate access to and use of the Storage Bins, and that the Declaration and By-Laws do not provide for a Storage Bin Licensing Fee. However, nothing in the Declaration or By-Laws limits the Sponsor's right to collect a Storage Bin License Payment from Residential Unit Owners for the privilege of entering into a Storage Bin License Agreement. Indeed, plaintiff concedes that, other [*8]than the $10 monthly fee, "[n]o where else in the Declaration or the By-laws is there any mention whatsoever of any other fees" (Pl Br., at 8). Silence on an issue does not constitute contradiction. Moreover, the reference to the monthly fee in the By-Laws supports the arrangement described in the Offering Plan.

Plaintiff's position that, pursuant to the Declaration, it is the only party who is entitled to charge a fee for the use of the Storage Bins, ignores key provisions of the Offering Plan, and renders the Offering Plan meaningless. Reading all of the governing documents as one instrument, as this court must do, this position vitiates the principle that courts should adopt an interpretation of a contract which gives meaning to every provision of the contract, with no provision left without force and effect (see RM 14 FK Corp. v Bank One Trust Co., N.A., 37 AD3d 272 [1st Dept 2007]; Lesal Assocs. v Board of Managers of Downing Court Condominium, 309 AD2d 594 [1st Dept 2003]). Indeed, if plaintiff's interpretation were accepted, the Offering Plan and the Purchase Agreements, which adopt the Offering Plan, would have to be ignored, and the Attorney General's review authority would be usurped.

Moreover, any suggestion that plaintiff is not obligated to enter into license agreements with those Unit Owners who wish to do so is contradicted by the express terms of the governing documents. The Offering Plan states that plaintiff "will license the use of Storage Bins to Unit Owners who purchase the right to such license under this Offering Plan" (Offering Plan, § C3 [emphasis added]). In addition, under the Declaration, plaintiff acts as an agent of Residential Unit owners for all purposes: "When the Board of Managers is authorized or obligated to act, it shall be acting on behalf of Unit Owners in the Condominium" (Declaration,

§ 6.1). Thus, under the plain provisions of the Offering Plan and the Declaration, plaintiff is obligated to follow through on the ministerial act of entering into Storage Bin License Agreements with Unit Owners who wish to do so.

Accordingly, plaintiff's motion for summary judgment on its first cause of action is denied. Defendants' cross motion for summary judgment on the first counterclaim for a declaration the Sponsor is entitled to sell the right to enter into a Storage Bin License Agreement with the plaintiff with respect to the remaining Storage Bins is granted.

Plaintiff's motion for summary judgment on its fourth cause of action for disgorgement of the Storage Bin License Payments already paid to the Sponsor is denied, as this cause of action is completely dependent upon the first cause of action.

Plaintiff also moves for summary judgment on its third cause of action, which seeks payment for Kennelly Development and James Kennelly's allegedly wrongful use of several Storage Bins. However, the allegations underlying this cause of action are made upon "information and belief" and fail to set forth the basis for that belief (see Tota Aff., ¶ 15 ["Upon information and belief, Defendants Kennelly Development Company LLC and/or James Kennelly occupied several of the Storage Bins for a period of approximately 24 months from the inception of Sycamore. ... and I am advised that neither of them entered into Storage Bin License Agreements or paid Storage Bin License Fees to Plaintiff"]).

"Summary judgment may not properly be granted on the basis of supporting affidavits which allege material facts only upon information and belief, and fail to adequately allege the source of the information and the grounds for the belief" (PalmOne, Inc. v R.C.S. Computer Experience, L.L.C., 15 Misc 3d 1127[A], 2007 NY Slip Op 50873[W], *6 [Sup Ct, NY County 2007]; see also Papworth [*9]v Landrover North America, Inc., 1 AD3d 898 [4th Dept 2003] [same]). Accordingly, summary judgment must also be denied on the third cause of action.

The court has considered the remaining claims, and finds them to be without merit.

Accordingly, it is

ORDERED that plaintiff's motion for summary judgment is denied; and it is further

ORDERED that defendants' cross motion for summary judgment on the first counterclaim is granted, the first and fourth causes of action of the complaint and the first counterclaim are severed, and as to the first and fourth causes of action and first counterclaim, it is

ADJUDGED and DECLARED that the provisions of the Condominium Offering Plan concerning the Sponsor's entitlement to the license fees are enforceable; that the Sponsor, defendant 250 East 30th Street Owners LLC, has the right to receive payment of the license fees, to retain those fees received to date and to collect those fees in the future; and it is further

ADJUGDED and DECLARED that defendant 250 East 30th Street Owners, LLC is entitled to sell the right to enter into a Storage Bin License Agreement with plaintiff the Residential Committee of the Board of Managers of The Sycamore with respect to the remaining unsold Storage Bins; and it is further

ORDERED that the remainder of the action shall continue; and it is further

ORDERED that the parties are directed to appear at a preliminary conference on

January 24, 2008 at 10:30 am in IAS Part 7, 111 Centre Street, Room 949, New York, New York.

Copies to both counsel.

Dated: December 11, 2007

New York, New YorkENTER:

s/

J.S.C.