Petitioner Louis Rabice and his wife, petitioner Janet Rabice, own Unit 11G in Green Mansions Country Club Estates, Section III (hereinafter Green Mansions), a condominium complex located in the Town of Warrensburg, Warren County. All units in the complex are subject to a Declaration and By-Laws administered by respondent Board of Managers of Green Mansions Country Club Estates, Section III. In January 2015 a frozen pipe burst in the attic of the building which houses Unit 11G, causing extensive damage to the Unit. Respondent thereafter filed a claim with its insurance agency and, on April 11, 2016, received $31,312.00 to repair the damage. To date, however, the damage has not been repaired. As a result, petitioners commenced this proceeding by Order to Show Cause on February 8, 2017 seeking to, inter alia, compel respondent to complete the repairs (see CPLR 7701). Respondent then served an answer and cross-moved to dismiss based upon petitioners' failure to join necessary parties (see CPLR 3211 [a] [10]).

The parties appeared for oral argument on April 3, 2017, at which time the Court was advised of a possible settlement. The Court therefore reserved its decision and directed the parties to provide a status update on or before May 5, 2017. Counsel for the parties then sent correspondence on May 5, 2017 requesting additional time to negotiate a settlement. This request was granted, with the parties directed to provide a further status update on or before July 24, 2017. On July 26, 2017, the Court received correspondence from counsel for petitioners advising that a settlement still had not been reached and requesting a conference "to address and resolve any issues that may be preventing [the] execution of [an] agreement and [the] [*2]commencement of . . . repairs." Most recently, Alexis More — who is petitioners' tenant and resides in the Unit — filed a motion to intervene. To the extent that several months have now passed without any settlement and the situation seems to be deteriorating, the Court declines to schedule a conference and will instead proceed to a determination on the merits.

At the outset, respondent's cross motion is denied in its entirety. CPLR 3211 (a) (10) only "permits a dismissal when it is shown that a person indispensable to the action has not been, and cannot be, made a party" (David D. Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3211:34; see Matter of Ogbunugafor v New York State Educ. Dept., 279 AD2d 738, 739-740 [2001], lv denied 96 NY2d 712 [2001]). Here, respondent contends that the other 20 unit owners in Building 11 are necessary parties, as they could potentially be assessed fees if the costs of repair to the Unit are not covered by the insurance proceeds. This contention is speculative, however, as the costs of repair are not yet known and may very well be covered by the insurance proceeds. It therefore cannot be said that the other unit owners are indispensable parties.

Turning now to the petition, Article VI, Section 3 of the By-Laws — entitled "Repair and Restoration After Fire or Other casualty" — states as follows:

"In the event of damage to or destruction of any Building or Buildings as a result of fire or other casualty, . . . the Board of Managers shall arrange for the prompt repair and restoration of such Building or Buildings, and the Board of Managers, as Insurance Trustee, shall disburse the proceeds of all insurance policies to the contractors engaged in such repair and restoration in appropriate progress payments. . . .

"The Board of Managers, as Insurance Trustee, shall notify the Unit Owners, within 30 days after its receipt of the proceeds of insurance resulting from such damage or destruction, that such proceeds are or are not sufficient to pay the estimated cost of repair and restoration. Wherever in this [s]ection the words 'prompt repair' are used, it shall mean that repairs are to begin not more than sixty (60) days from the date of such notice if the proceeds of insurance are sufficient to pay the estimated costs of such work, or not more than ninety (90) days after the date of such notice if the proceeds of insurance are insufficient to pay the estimated costs of such work."

The Condominium Act (see Real Property Law art 9-B) similarly provides that "damage to or destruction of [a] building shall be promptly repaired and reconstructed by the board of managers, using the proceeds of insurance, if any, on the building for that purpose" (Real Property Law § 33-cc).

Here, petitioners seek to compel respondent to complete the repairs in accordance with the provisions of the By-Laws and the Condominium Act. Alternatively, petitioners seek the appointment of a receiver to engage a contractor to perform the repairs. Respondent focuses the majority of its attention on this alternative request for relief, contending that "[t]he appointment of a [r]eceiver [is] completely unnecessary because [it] continues to try to make the necessary repairs". According to respondent, More has blocked access to the Unit on several occasions, making it difficult for potential contractors to inspect the damage and provide an estimate for the repairs. Respondent has submitted the affidavits of three individuals: (1) Michael Farber, its President; (2) Robert Simon, an attorney who attempted to intervene on its behalf so as to settle [*3]this dispute; and (3) Ralph Bartlett, its property manager. Each of these individuals attests to the difficulties they have had in dealing with More. Bartlett, for example, who is a construction contractor and has performed other repairs for respondent throughout the condominium complex, attempted to inspect the premises in July 2016 but was denied access by More. She apparently "advised [him] that [petitioners] did not want anyone 'associated with the Association' performing any work on the unit."

Under the circumstances, the Court finds that petitioners are not entitled to the appointment of a receiver. Respondent appears willing and able to complete the repairs and the appointment of a receiver would simply result in unnecessary expenditures for all involved. Petitioners in fact seem to concede that the appointment of a receiver is unnecessary.

To the extent that the parties agree on what needs to be done — namely, repairs to the damage in the Unit — it is unfortunate that settlement could not be reached and Court intervention remains necessary. Inasmuch as respondent is undisputably obligated to complete the repairs and — as noted above — appears willing and able to do so, the petition is hereby granted to the extent that respondent is compelled to complete the repairs within sixty (60) days of the date of service of a copy of this Decision and Order with notice of entry thereon. Petitioners shall cooperate fully with respondent and provide unhindered access to the Unit so as to ensure prompt completion of the repairs. The petition is otherwise denied.

In view of the foregoing, More's motion to intervene is now moot and need not be considered by the Court.

Therefore, having considered the Petition with exhibits attached thereto, dated January 16, 2017; Answer, dated March 28, 2017; Affidavit of John D. Wright, Esq. with exhibits attached thereto, sworn to March 28, 2017, submitted in support of the cross motion; Affidavit of Ralph Bartlett, sworn to March 28, 2017, submitted in support of the cross motion; Affidavit of Michael Farber with exhibits attached thereto, sworn to March 24, 2017 submitted in support of the cross motion; Affidavit of Robert Simon with exhibits attached thereto, sworn to March 26, 2017, submitted in support of the cross motion; and Reply Affirmation of Michael Crowe, Esq., dated March 30, 2017, submitted in opposition to the cross motion and in further support of the Petition; and oral argument having been heard on April 3, 2017 with Michael Crowe, Esq. appearing on behalf of petitioners and John D. Wright, Esq. appearing on behalf of respondent, it is hereby

ORDERED that respondent's cross motion is denied in its entirety; and it is further

ORDERED that the petition is granted to the extent that respondent is compelled to complete the repairs within sixty (60) days of the date of service of a copy of this Decision and Order with notice of entry thereon; and it is further

ORDERED that petitioners shall cooperate fully with respondent and provide unhindered access to the Unit so as to ensure prompt completion of the repairs; and it is further

ORDERED that the petition is otherwise denied; and it is further

ORDERED that More's motion to intervene is moot and need not be considered by the Court; and it is further

ORDERED that any relief not specifically addressed herein has nonetheless been considered and is expressly denied.

The above constitutes the Decision and Order of this Court.

The original of this Decision and Order has been filed by the Court together with the Notice of Cross Motion dated March 28, 2017 and the submissions enumerated above. Counsel for petitioners is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry in accordance with CPLR 5513.^[FN1]