AA Med., P.C. v Heather L. Miller, D.D.S., P.C.

Appellate Term of the Supreme Court, Appellate Term, Second Department, 9th And 10th Judicial Districts

Decided on July 29, 2025

2024-124 S C

Present: : Jerry Garguilo, P.J., Timothy S. Driscoll, Elena Goldberg-Velazquez, JJ

Sage Legal, LLC (Emanuel Kataev of counsel), for appellant. Certilman, Balin, Adler & Hyman, LLP (Anthony W. Cummings of counsel), for respondents.

Appeal from an order of the Suffolk County Court (David A. Morris, J.), dated November 20, 2023. The order granted defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

Plaintiff, the owner and occupant of Unit 10D at a condominium in Stony Brook, New York, commenced this action in Supreme Court, Suffolk County, against defendants, the owners and occupants of Unit 10C at the condominium, seeking damages for private nuisance, trespass, and negligence based on an infestation of "thousands of live ants" allegedly emanating from defendants' unit to plaintiff's unit. After the answer was filed and the case was removed to the Suffolk County Court (see CPLR 325 [d]), defendants moved for summary judgment dismissing the complaint, arguing, among other things, that plaintiff failed to name the board of managers as a necessary party and that there are no material issues of fact that would require a trial. Plaintiff opposed the motion, claiming, among other things, that the board of managers was not a necessary party and adding a claim that defendants had violated the condominium's bylaws. In an order dated November 20, 2023, the County Court (David A. Morris, J.) granted defendants' motion, stating that "no valid cause of action exists against defendants as the Board of Managers are solely responsible . . . to control and exterminate any vermin, insects or other pests" and that "plaintiff failed to submit any evidence as to the source of the alleged onslaught of ants nor evidence of any damages allegedly sustained."

Plaintiff's causes of action for private nuisance, trespass, and negligence were properly dismissed as the allegations in the complaint and the opposition to defendants' motion are either [*2]insufficient or based upon bald, conclusory allegations and not accompanied by any evidentiary proof (see Withopf v Rapid Tr. Servs., Inc., 210 AD3d 827 [2022]; Laskaratos v Bay Ridge Hoyt Lender, LLC, 185 AD3d 908 [2019]).

With respect to the added cause of action for violating the condominium's bylaws, we note that "[c]ondominium ownership is a hybrid form of real property ownership, created by statute" (Board of Mgrs. of Vil. View Condominium v Forman, 78 AD3d 627, 629 [2010]; see Matter of Levandusky v One Fifth Ave. Apt. Corp., 75 NY2d 530 [1990]). 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 1, 6 [1987]; see Forestal Condominium v Davydov, 157 AD3d 866 [2018]). Here, the bylaws conferred powers upon the board of managers, including the power to "abate nuisances and to enjoin or seek damages from the Unit Owners for violations of the Declaration, these [Bylaws] and the house rules and regulations herein referred to" (Article II, Section 5 [a] [7]). An owner's failure to comply with "the by-laws and with rules, regulations, resolutions and decisions adopted pursuant thereto" is a ground for an action "by the board of managers on behalf of the unit owners or, in a proper case, by an aggrieved unit owner" (Real Property Law § 339-j). Under the circumstances presented, we find that plaintiff failed to demonstrate that this was a "proper case" giving rise to a cause of action by a unit owner against another unit owner (cf. Ewen v Maccherone, 32 Misc 3d 12 [App Term, 1st Dept 2011]). Thus, we leave undisturbed the dismissal of the cause of action alleging a violation of the bylaws.

Accordingly, the order is affirmed.

GARGUILO, P.J., DRISCOLL and GOLDBERG-VELAZQUEZ, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: July 29, 2025