Mittman v Board of Mgrs. of Bayside Plaza Condominium (2014 NY Slip Op 50541(U))

Mittman v Board of Mgrs. of Bayside Plaza Condominium

2014 NY Slip Op 50541(U) [43 Misc 3d 1208(A)]

Decided on April 7, 2014

Supreme Court, Queens County

McDonald, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Upon the foregoing papers it is ordered that the motion and cross motion are determined as follows:

Plaintiff Robert Mittman, the owner of three commercial units and 16 parking spaces dedicated for commercial use at the Bayside Plaza Condominium brings an action for declaratory and injunctive relief, and money damages for what he contends are discriminatory, improper, unauthorized and harassing actions taken against him by the Board of the Condominium. The complaint is based upon a seven month assessment for a planned $400,000 construction project to repair a parking deck at the condominium. The assessment began on June 1, 2011. Mittman was assessed $15,000 per parking space which he contends is a grossly disproportionate allocation of the total cost of the project. Mittman seeks, inter alia, an injunction permanently enjoining the Board from enforcing the assessment against him, to the extent that it seeks to allocate more than 60% of the total assessment to him.

Based upon Mittman's failure to pay the special assessment, the Board brought an action to foreclose against common charge liens filed against Mittman's commercial units for unpaid common charges and special assessments (Action No. 2/ the "Condo complaint"). As provided above, the Board moves for summary judgment in its favor and to dismiss the causes of action in the complaint. Mittman cross moves for summary judgment in his favor on his causes of action and counterclaims. The motion and cross motion are opposed by the respective parties.

Bayside Plaza Condominium (the "Condominium"), consists of one nine-story building containing forty-seven residential condominium units: five street-level commercial units (the "commercial units"); sixteen commercial parking space units (the "parking space units"), located on a street level parking deck; and thirty-four residential garage units (the "garage units"), located in an underground garage that is half under the parking deck, and half under the building itself. The condominium's building and property are located at 213-02 42nd Avenue, in Bayside, New York.

The Board of Managers (the Board), manages the affairs of the condominium, which was created pursuant to an organized plan of condominium home ownership under authority of Article 9-B of the Real Property Law of the State of New York. All unit owners at Bayside Plaza are bound by the Declaration of Condominium of Bayside Plaza (the "Declaration"), dated May 31, 1991, and filed in the Office of the Clerk of the County of Queens on July 19, 1991, in Reel 3178, Page 0545, and as supplemented by the By-laws of the Condominium (the "By-laws). The Board consists of five persons, four of whom are voted to serve for three-year terms by the 47 residential units owners at the Condominium's annual meeting. The fifth seat on the Board is reserved for the votes of whoever owns the commercial units. Since the creation of the Condominium in or about 1991, only one person has owned the five Commercial Units and the related sixteen commercial parking space units, namely, Robert Mittman. Thus, Mittman is the owner of one hundred percent of all such commercial units, and he has served on the Board since [*2]at least 1991. Mittman is a physician, however Mittman has never used any commercial unit at Bayside Plaza for his own medical practice, but instead has rented the space for profit to a variety of commercial enterprises, including a dry cleaner; a podiatrist; a radiology lab; a telecommunications company; a Papa John's Pizzeria; and an Edible Arrangements fruit arrangement shop.

Defendant Richard Bermudez resides in, and is the owner of residential unit 4C, a two-bedroom apartment on the fourth floor. Bermudez also owns a garage unit. Bermudez bought Unit 4C and his garage unit in 1991, and has been elected by the residential Unit Owners to serve on the Board for many years, since at least 1999. Bermudez is frequently elected by the other residential Board members to serve as President of the Condominium, as has occurred every three years, since at least 2000.

Bayside Plaza Condominium's parking deck (the "parking deck") reached a point where substantial renovation work had to be undertaken to ensure its structural integrity. The Parking Deck issue was raised and discussed by all unit owners at Annual Meetings since at least 2009. The topic was also the subject of numerous monthly Board meetings, including in January, February, April, May and June 2009. Mittman was present at four of those five monthly meetings, missing only the meeting on May 14, 2009. At the Board's monthly meeting on June 10, 2009, The Board approved the retention of Desman Associates, Inc., a firm of duly licensed and experienced professional engineers, to review and assess the parking deck. Mittman was present at that Board meeting and voted to approve the hiring of Desman Associates, Inc. By written contract dated June 18, 2009, Desman Associates, Inc., was officially retained by the Board.

In addition to the parking deck itself, other portions of the Condominiums's physical site needed maintenance, repair and replacement: (1) the driveway area and access lane to all parking space units; (2) the ramp to the garage which contains all the garage units; (3) the concrete slab, planks, membrane, drainage systems and steel beams upon which all the parking space units are located, and underneath which certain garage units are located; and (4) walls, curbing, railing, drainage systems, fireproofing, signage and other miscellaneous items located by, near, on, over or within the foregoing areas.

The Board of Managers is charged with the task of addressing the deterioration of the parking deck. The Board possesses the authority to, and is charged with the duty of allocating the expenses of such a renovations project amongst the Condominium's unit owners. The Declaration provides generally that each unit owner shall bear the common expenses of the Condominium in accordance with their percentage interest as set forth in Schedule B of the Declaration. However, the Declaration also provides that all unit owners covenant and agree to be responsible for the repair and maintenance of their particular units. Moreover, the Declaration states that the Board has the power to "specifically allocate and apportion profits and expenses, in a manner different from common profits and expenses, based on special or exclusive use, or availability or exclusive control, of facilities or services provided by the Condominium. The [*3]power of the Board to specially allocate expenses as set forth in the Declaration is in accord with Section 339-m of the Condominium Act, the language of which is substantially tracked by the Declaration itself.

In order to discharge its duty and address the major capital project for the maintenance, repair and replacement of the parking deck and related areas, the Board duly adopted a written resolution on April 6, 2011 (the "Resolution"). The Resolution sets forth the factual background for the project; the basis for the Board's authority, the Board's reliance upon the expertise, advice and opinions of its professional engineers and the basis for the Board's specific allocations of the expenses of the Project among all unit owners. The sixty percent (60%) assessed to the parking space units correlates with the bid numbers that had been provided to the Board by Structural Contracting Services, Inc., one of the bidders for the project. Structural Contracting Services, Inc., broke down the basis for its bid for the work into thirty-five categories. Four of those categories significantly relate to Limited Common Elements restricted in use to the owner of the parking space units, as follows:

These four bid items alone constitute $188,400 of the $316,720 base bid by Structural Contracting Services, Inc., or 59.49% of the total Base Bid. This is the basis for why the Board assessed Mittman, the owner of the parking space units, for 60% of the cost of the Project. The Resolution was signed by four of the five Board members on April 6, 2011: Richard Bermudez; Noreen Cavanagh; Daniel Heller; and Robin Tannenbaum. The only board member that did not sign the Resolution was Robert Mittman.

After adopting the Resolution in April, 2011, the Board proceeded to take steps to undertake the Project. A construction contract for the Project was drafted, negotiated and signed with the successful bidder, Structural Contracting, Inc., in or about July 2011. To pay for the project, a special assessment of all unit owners, including Mittman, was instituted by the Board in June 2011.

Under the By-laws, all unit owners are bound and obligated to pay certain common charges allocated to the unit together with late charges, special assessments and interest as may be applicable. The record indicates that Mittman's five commercial condominium units constituting six percent of the condominium's common interests, and Mittman's sixteen commercial parking space units constitute another two percent of the condominium's common interests. Mittman refused to pay common charges allocated to and due upon his commercial units and parking space units from June 1, 2011. The Board served Mittman with a Default Notice on August 15, 2011. When Mittman failed to cure the default, the Board, by written resolution dated September 8, 2011, declared that the whole amount of common and other [*4]charges and assessments through calendar year 2011 were due from Mittman. The Board thereafter filed the liens against all of Mittman's units for unpaid common charges in the amount of $251,117.70, in the Office of the Queens County Clerk. Said liens were dated September 21, 2011, and recorded October 3, 2011 at CRFN 2011000349756 (the "common charge liens").

Instead of paying the portion of the Assessment which the Board alleges Mittman owed, Mittman commenced Action No. 1, by filing a Summons with Notice in this Court on July 26, 2011. The Summons with Notice was served on September 7, 2011. The Board demanded that Mittman serve a complaint, and after a stipulated period, Mittman filed his complaint on December 8, 2011 (the "Mittman Complaint"). Mittman's complaint contains eight (8) causes of action. Thereafter, the Board commenced Action No. 2, seeking to foreclose on the Common Charge Liens, on November 21, 2011 (the "Condo Complaint"), along with a Notice of Pendency. Mittman answered the Condo complaint, asserting three counterclaims against the Board, to wit, breach of the Declaration; a declaration that the assessment is improper and for breach of contract. The Board served a reply to the three counterclaims.

Given the factual and legal overlap between the two actions, the parties resolved a motion to consolidate brought by Mittman in March, 2012, by Stipulation (and so-ordered by the Court), which joined the cases for trial. Incidentally, there were three other lawsuits between the parties, which have been fully and finally determined.

It is noted that Mittman was not the only unit owner assessed by the Board for the parking deck repairs. The Board assessed residential unit owners who own one of the thirty-four garages units a greater percentage than their common interest because of their exclusive use of the driveway ramp which leads under the parking deck to the underground garage. But the garage unit owners were assessed twenty percent of the total bill, or $80,000 in total, even though their common interest for all thirty-four garage units is only ten percent. Moreover, because the parking deck acts as a roof over half the garage units, and because the unit owners with garage space under the renovated parking deck will essentially be getting a new roof overhead, they were assessed more for the project than unit owners with garage space under the building and not the parking deck — 52% to 48%. Finally, it is noted that the Board assessed every unit owner their common interest — even those residential unit owners who do not own a garage unit — for twenty percent of the project, or $80,000.

The branch of the motion by the Board which is for summary judgment in its favor on all causes of action in the complaint, is denied.

Condominium ownership is a hybrid form of real property ownership, created by statute (see Real Property Law art 9-B [§ 339-d et seq.] [hereinafter the Condominium Act] Caprer v Nussbaum, 36 AD3d 176, 183 [2006]). Pursuant to the Condominium Act, each owner holds a real property interest in his or her unit and its appurtenances (see Real Property Law § 339-g), which consists of an exclusive possessory interest in the unit (see Real Property Law § 339-h), [*5]and an undivided interest in the common elements of the condominium (see Real Property Law § 339-I; Caprer v Nussbaum, 36 AD3d at 183; Murphy v State of New York, 14 AD3d 127, 132-133 [2004] Schoninger v Yardarm Beach Homeowners' Assn., 134 AD2d 1, 5-6 [1987]).

Upon the filing of a Declaration (see Real Property Law § 339-n), a condominium is subject to the jurisdiction of the Condominium Act (see Real Property Law § 339-f). In addition, the administration of the condominium's affairs is governed principally by its bylaws, "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 own units and the condominium's common elements" (Schoninger v Yardarm Beach Homeowners' Assn., 134 AD2d at 6; see Matter of Levandusky v One Fifth Ave. Apt. Corp., 75 NY2d 530, 536 [1990] Murphy v State of New York, 14 AD3d at 133; Four Bros. Homes at Heartland Condominium II v Gerbino, 262 AD2d 279, 280 [1999] Quinones v Board of Mgrs. of Regalwalk Condominium I, 242 AD2d 52, 54 [1998]). The basic agreement among the unit owners as to the manner in which the condominium shall be administered and maintained is set forth in the condominium's bylaws (see Real Property Law § 339-v).

The powers of the Board with regards to the allocation and assessment of common charges related to the repair and maintenance of the Condominium are clearly set forth in the Condominium's By-laws which provide, in relevant part, as follows:

(a)The property and business of the Condominium shall be managed by its Board of Managers, which may exercise all such powers of the Condominium and do all such lawful acts and things as are not by Statute or by Declaration or by these By-laws, directed or required to be exercised or done by the Unit Owners personally. These powers shall specifically include, but not be limited to, the following items:

(1)To determine and levy monthly assessments ("common charges"), to cover the cost of common expenses, payable in advance. The Board of Managers may increase the monthly assessments or vote a special assessment in excess of that amount, if required, to meet any additional necessary expenses, but said increases can only be assessed among the Unit Owners pro-rata according to their respective common interest;

(Emphasis Added). According to the Declaration in this case, this percentage of common interest is based "upon floor space, subject to the location of such space and the additional factors of relative value to other space in the Condominium, the uniqueness of the Unit, the availability of the Common Elements for exclusive or shared use and the overall dimensions of the particular Unit pursuant to Real Property Law §339(i)(l)(iv).

The total percentage of common interest allocated to Mittman's units is eight, yet the Board assessed Mittman for 60% of the cost of the Project. In defense of its action, the Board [*6]argues that they are permitted to allocate more than Mittman's proportionate share of the common expense because of Mittman's "special or exclusive use, or availability or exclusive control, of facilities or services provided by the Condominium." The Board contends that Mittman should pay the 60% based upon the four bid items referenced in the Board's Resolution dated April 6, 2011 (the "Resolution"), that relate to the parking deck purportedly amounting to 59.49% of the total base bid for the project. The four bid items are:

(d)Bid Item 10, Traffic Bearing Waterproofing Membrane, $102,600.

The Board claims that Mittman should be individually responsible for 60% of the total cost of the Garage Repair Projects because Mittman's parking space units benefit the most from the repairs associated with those four items. The By-laws, however, require that allocation of common charges be proportionate to the unit owners' common interest in the common elements of the Condominium. Secondly, even if the Board could deviate from the By-laws, the garage unit owners would seem to derive at least equal benefit from the garage repair project. The enclosed parking spaces appear more secure and more valuable that outdoor parking spaces and repairs to the waterproofing membrane would protect the contents of the garage, not the outdoor parking spaces. In any event, there appears to be no justification for allocating the costs of the garage repair project in any manner other than in proportion to each condominium unit owners' percentage of common interest in the common elements, as required under the By-laws.

Finally, with regards to this point, the Board's decision to assess Mittman more than his proportionate share of the common charges associated with the garage repair project is not protected by the business judgment rule. The business judgment rule does not apply to actions taken by the Board "outside the scope of its authority" (40 W. 67th St. v Pullman, 100 NY2d 147, 155 [2003] see also Board of Mgrs. of 229 Condominium v J.P.S. Realty Co., 308 AD2d 314, 316-317 [2003] [holding that a triable issue existed as to whether a condominium board of managers acted outside the scope of its authority in assessing the expenses of the condominium's residential unit to the condominium, and that the business judgment rule did not insulate that determination from judicial scrutiny]).

Here, the condominium's bylaws require the allocation of the costs of the garage repair project in proportion to each condominium unit owners' percentage of common interest in the common elements. The Resolution purporting to charge Mittman 60% of the cost of the garage repair when his unit share is only 8%, appears unjustified. The Board contends that Mittman would benefit greatly from the repair. However, it is uncontroverted that the repair of the garage also benefits the garage unit owners. Thus, the Board's justification for imposing 60% of the cost to Mittman —i.e., because he benefits most from the repair —is belied by the fact that the garage unit owners also benefit substantially from the repair. Therefore, the Board's allocation does not further any legitimate corporate purpose and unfairly singled out Mittman and is thus beyond the protection of the business judgment rule. Since here the evidence submitted by the defendants in [*7]support of their motions indicates that their adoption of the Resolution was unauthorized by the condominium's bylaws, the decision is not protected by the business judgment rule. Accordingly, the branches of the motions by the Board which are for summary judgment in its favor, are denied.

When moving to dismiss an affirmative defense, plaintiff bears the burden of demonstrating that the affirmative defense is "without merit as a matter of law" (see CPLR 3211[b] Vita v New York Waste Servs., LLC, 34 AD3d 559, 559 [2006]). In reviewing a motion to dismiss an affirmative defense, this court must liberally construe the pleadings in favor of the parting asserting the defense and give that party the benefit of every reasonable inference (see Fireman's Fund Ins. Co. v Farrell, 57 AD3d 721 [2008]. Moreover, if there is any doubt as to the availability of a defense, it should not be dismissed (see, id. ). In order for a defendant to successfully oppose such a motion, defendant must show his or her possession of a bona fide defense, i.e., one having "a plausible ground or basis which is fairly arguable and of substantial character" (Feinstein v Levy, 121 AD2d 499 [1986]). Self-serving and conclusory allegations do not raise issues of fact (see Rosen Auto Leasing, Inc. v Jacobs, 9 AD3d 798 [2004]), and do not require plaintiff to respond to alleged affirmative defenses which are based on such allegations (Charter One Bank, FSB v Leone, 45 AD3d 958, 959 [2007]).

To prevail on a breach of contract action, plaintiff must establish an agreement between the parties, the performance by plaintiff, defendant's failure to perform and resulting damages (Dee v Rakower, 2013 NY Slip Op 07443 [2d Dept. Nov. 13, 2013; JP Morgan Chase v J.H. Elec. Of NY, Inc., 69 AD3d 802 [2010]). In such an action, "the essential terms of the parties' purported contract, including the specific provisions of the contract upon which liability" is predicated must be established (Matter of Sud v Sud, 211 AD2d 423 [1995]). Once created, "the administration of a 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 operated, and which set forth the respective rights and obligations of unit owners, both with respect to their own units and the condominium's common elements" (Glenridge Mews Condominium v Kavi, 90 AD3d 604 [2011] citing Schoninger v Yardarm Beach Homeowners' Assn., Inc., 134 AD2d 1 [1987]).

"A purchaser of a unit in a condominium enters into a binding relationship with every other unit owner by both contract and statute. One of the elements of that relationship is the obligation to pay common charges. . ." (Board of Mgrs. of Lido Beach Towers Condominium v Gartenlaub, 27 Misc 3d 1213[A], 2010 NY Slip OP 50729[U] [Sup Ct, Nassau County 2010, slip op at 2]). However, Real Property Law §339-e(2) defines common charges as each unit's proportionate share of the common expenses in accordance with the common interest. Common expenses are defined as (a) expenses of operation of the property and (b) all sum designated common expenses by or pursuant to statute, the declaration or the by-laws (see, Real Property Law §339-e[2]) .

The obligation of a condominium unit owner to pay common charges is, for the most part, [*8]absolute and cannot be avoided (90 E. End Ave. Condominium v Becker, 2010 NY Slip Op 31660[U] [Sup Ct, New York County 2010, slip op at 10] see also, Real Property Law §339-x). Further, RPL §339-aa provides, in part, that a condominium may commence suit for a money judgment and commence a foreclosure action, without waiving its lien, if the amounts securing the lien have not been paid as the lien continues until the earlier of all sums secured thereby have been paid, or six years (see generally, Board of Mgrs. of Highview Condominium v Mahland, 177 Misc 2d 502 [Civ Ct, Richmond County, New York 1997]).

By its submissions, the Board demonstrated its entitlement to judgment as a matter of law awarding it the sums that it assessed against Mittman for common charges (see Directors of Squire Green at Pawling Homeowners Assn., Inc. v Bell, 89 AD3d 657 [2011] Board of Directors of Hunt Club at Coram Homeowners Assn., Inc v Hebb, 72 AD3d 997 [2010]).

The Board submitted evidence of its authority to collect those charges and assessments pursuant to the relevant sections of the Governing Documents. The Board also demonstrated the validity of the lien (see Real Property Law §339-aa). It is undisputed that Mittman agreed to be bound by the Condominium's Governing Documents when he purchased the commercial units. It is also undisputed that the Governing Documents require Mittman, as a unit owner, to pay common charges, late charges and other related charges and expenses as required by the Governing Documents. Therefore, absent a valid defense, the Board would be entitled to judgment in its favor on their causes of action as a matter of law (Board of Mgrs. of the Garden Terrace Condominium v Chiang, 247 AD2d 237 [1998] 90 E. End Ave. Condominium v Becker, supra.

In opposition, Mittman raises a valid defense to the charges, namely whether the assessment is unjustifiably disproportionate to Mittman's unit ownership. Exterior renovation of condominium building is a "common expense," toward which an owner of commercial condominium space is required to contribute in same proportion as his ownership interest in condominium ( Board of Managers of Amherst Condominium v CC Ming (USA) Ltd. Partnership, 17 AD3d 183 [2005]

The branches of the motion by the Board which are to dismiss the claims against Bermudez, are granted. In the absence of any allegations that Bermudez acted tortiously other than in his capacity as a board member, the causes of action state no cognizable claims against him (see Murtha v Yonkers Child Care Assn., 45 NY2d 913, 915 [1978]). Relatedly, the mere allegation or showing of a director's "participation in a breach of contract will typically not give rise to individual director liability (see Fletcher v the Dakota, Inc., 99 AD3d 43 [2012]).

The branch of the motion by the Board which is to dismiss Mittman's cause of action alleging that the Board members aided and abetted each other in breaching a fiduciary duty to Mittman, is granted. To recover damages for aiding and abetting a breach of fiduciary duty, a plaintiff must plead and prove that a fiduciary duty owed to plaintiff was breached, that the defendant "knowingly induced or participated in the breach," and that the plaintiff sustained damages as a result of the breach (see Kaufman v Cohen, 307 AD2d 113 [2003] Roni LLC v Arfa, 15 NY3d 826 [2010] Global Mins. & Metals Corp. v Holme, 35 AD3d 93 [2006] ). A [*9]person knowingly participates in a breach of fiduciary duty only when he provides substantial assistance to the primary violator (see Velazquez v Decaudin, 49 AD3d 712 [2008] Caprer v Nussbaum, 36 AD3d 176 [2006] ). Substantial assistance occurs when a defendant affirmatively assists, helps conceal or fails to act when required to do so, thereby enabling the breach to occur ( Monaghan v Ford Motor Co., 71 AD3d 848 [2010] ). Here, this court finds that the complaint and supporting affidavits do not sufficiently set forth allegations which raise a question of fact as to whether the Board members aided and abetted each other in breaching a fiduciary duty owed to Mittman.

The branch of the motion which seeks to dismiss Mittman's claim that the Board has wasted the Condominium's assets, is granted. Mittman did not submit any evidence, beyond mere speculation, that Bermudez or any of the other board members had knowledge of or benefitted from any wasteful conduct ( see Business Corporation Law § 720[a][1][B] Abalon Precision Mfg. Corp. v Flair Intern. Corp., 19 AD3d 338 [2005]).

The branches of the Board's motion which are to dismiss Mittman's claims for breach of fiduciary duty against the Board, as time-barred are denied. The Board contend that they are time-barred because the three-year statute of limitations found in CPLR 214(4) applies to breach-of-fiduciary-duty claims. Mittman argues that the six-year limitations period found in CPLR 213(7) applies. New York law does not provide any single limitations period for breach-of-fiduciary-duty claims ( Kaufman v Cohen, 307 AD2d 113, 118 [2003]). Generally, the applicable statute of limitations depends upon the substantive remedy sought ( Id.). When the relief sought is equitable in nature, the six-year limitations period found in CPLR 213(1) applies ( Id.). On the other hand, when lawsuits alleging a breach of fiduciary duty seek only money damages, courts have viewed such actions as alleging injury to property to which the three-year statute of limitations found in CPLR 214(4) applies (Id). In any event, a claim for breach of fiduciary duty accrues, and the statute of limitations begins to run, upon the date of the alleged breach. The statute of limitations may be tolled while a relationship of trust and confidence exists between the parties ( Ciccone v Hersh, 530 F Supp 2d 574, 579 [2008], affd 320 Fed App 48 [2nd Cir 2009] ). In such cases, the statutory period does not begin to run until the fiduciary relationship is openly repudiated or otherwise ended ( Steele v Anderson, U.S. Dist Ct, NDNY, Jan. 8, 2004, Mcavoy, Senior J. [2004 WL 45527], citing Westchester Religious Inst. v. Kamerman, 262 AD2d 131 [1999]). Here, regardless of whether the three or six year period applies, Mittman's claims alleging breach of fiduciary duty by the Board are not time-barred since the Board has not repudiated their obligations as fiduciaries to Mittman as Mittman is still a unit owner of the Condominium and a member of the Board.

The branches of the cross motion by Mittman which are for summary judgment on his first cause of action against the Board for an injunction to stop the assessment; and for summary judgment on his second cause of action against the Board seeking a declaratory judgment that the Resolution and the Assessment were improper, are granted, as discussed above. [*10]

The branch of the cross motion which seeks summary judgment on his third counterclaim in Action No. 2, alleging breach of fiduciary duty against the Board is denied as Mittman failed to bring a separate cross motion under Index No. 26734/2011.

The branch of the motions by the Board which is for summary judgment in their favor is denied.

The branches of the motion which are to dismiss Mittman's claims against Bermudez, individually, are granted.

The branches of the motion which are to dismiss Mittman's claims that the Board members aided and abetted each other in breaching a fiduciary duty to Mittman, are granted.

The branches of the motion by the Board which seek to dismiss Mittman's claims that the Board wasted the Condominium's assets, are granted.

The branches of the motion by the Board which seek to dismiss Mittman's claims for breach of fiduciary duty are denied.

The branch of the cross motion which seeks summary judgment on his third counterclaim alleging breach of fiduciary duty against the Board is denied.

Dated: April 7, 2014