JOSIFI v. Westcor Land Insurance Title Company and Peter F. Martin, Defendants. (2022)

ORDERED that, on the court's own motion, the notice of appeal from the decision dated October 31, 2018 is deemed a premature notice of appeal from the judgment entered February 8, 2019 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is affirmed, without costs.

Plaintiffs commenced this action to recover the principal sum of $3,850.54, alleging breach of contract, breach of fiduciary duty and fraud. Defendants Regal Walk Condominium II (Regal) and Colby Property Management (Colby) interposed a counterclaim to recover the sum of $20,539.47, alleging breach of contract and for overdue common charges and assessments, late fees, interest and legal fees pursuant to a homeowners association agreement. Plaintiffs appeal from a judgment entered February 8, 2019 which, after a nonjury trial, dismissed so much of the complaint as was against defendants Regal, Colby, and Gateway Arms Realty Corp. (Gateway), and awarded defendants Regal and Colby the principal sum of $20,539.47 on their counterclaim.

The trial evidence established that plaintiffs entered into a contract on December 10, 2014 to purchase a condominium at a complex where defendant Regal is the homeowners association. Plaintiffs’ attorney thereafter received a letter dated March 2, 2015 from Gateway, the management office at the time, stating that the condominium's monthly common charge was $208.01, which letter was admitted into evidence. Plaintiffs claimed that they would never have purchased the condominium if they knew that the monthly common charges were significantly higher.

The Multiple Listing Service listing the subject condominium for sale, the appraisal, the contract of sale, and the plaintiffs’ mortgage application, the latter two of which plaintiffs signed and all of which defendants presented at the closing at which plaintiffs were present with an attorney, listed the condominium's monthly common charge as $302.54. Plaintiff Ylli Josifi testified that he did not read the documents at the closing because he had an attorney present.

The record supports the Civil Court's determination that plaintiffs failed to make out a prima facie case on any of their causes of action and thus properly dismissed the complaint. The evidence also established that Regal and Colby were entitled to recover on their counterclaim.

Accordingly, the judgment is affirmed.

ALIOTTA, P.J., WESTON and BUGGS, JJ., concur.