Appeal from a judgment of the Justice Court of the Village of Tarrytown, Westchester County (Kyle C. McGovern, J.), entered January 9, 2009. The judgment, entered upon "stipulated facts," dismissed the action.

ORDERED that the judgment is reversed without costs, the action is reinstated and the matter is remitted to the Justice Court for further proceedings not inconsistent herewith.

In this small claims action, plaintiffs, the owners of a condominium unit, seek to recover the cost of repairs, which repairs, they assert, should have been paid for by defendant. The parties agreed to have the Justice Court render a judgment based upon "stipulated facts" (see generally CPLR 3222). However, as no written stipulated facts were submitted to the Justice Court, a determination cannot properly be made as to which party is responsible for payment of the cost of the repairs made by plaintiffs. Consequently, the judgment in favor of defendant is reversed, the action is reinstated and the matter is remitted to the Justice Court for further proceedings. Should the parties determine that there are no facts in dispute, they may stipulate to a definite statement of facts sufficient to resolve the issue in dispute, including the location of the concrete floor slab referred to in the declaration of the condominium. If the parties cannot so stipulate, the action shall proceed in its normal course (see New York Cent. Mut. Fire Ins. Co. v Bellini, 2 Misc 3d 40 [App Term, 9th & 10th Jud Dists 2003]).

We note in passing that although the offering plan submitted to the Justice Court indicated that repairs to a "limited common element" are defendant's responsibility, based on the facts before us on appeal, we are unable to determine whether the provisions contained in said plan survived the delivery of the deed (see Lieberman v Greens at Half Hollow, LLC, 54 AD3d 908, 909 [2008]).

Nicolai, P.J., Molia and LaCava, JJ., concur.
Decision Date: March 08, 2010