                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: June 11, 2015                      519976
________________________________

BLUFF POINT TOWNHOUSE OWNERS
   ASSOCIATION, INC.,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

LISA KAPSOKEFALOS et al.,
                    Appellants.
________________________________


Calendar Date:    April 29, 2015

Before:    Peters, P.J., Garry, Rose and Devine, JJ.

                              __________


      The Clements Firm, Glens Falls (Thomas G. Clements of
counsel), for appellants.

      Niles Piller & Bracy, PLLC, Plattsburgh (John M. Crotty of
counsel), for respondent.

                              __________


Rose, J.

      Appeal from an order of the Supreme Court (Muller, J.),
entered January 7, 2014 in Clinton County, which, among other
things, granted plaintiff's motion for summary judgment.

      Plaintiff is a not-for-profit corporation formed in 1988 to
provide services for the benefit of the residents of a townhouse
development on Lake Champlain in the Town of Plattsburgh, Clinton
County. The owners of the townhouses pay membership dues to
plaintiff to cover the cost of these services. Although
defendants have owned one of the townhouses since 1999, they
refused to pay any membership dues after personal disputes arose
between them and their neighbors. Plaintiff obtained an order
requiring defendants to pay the monthly dues and we affirmed,
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concluding that, upon their purchase of the townhouse, defendants
had entered into an implied contract to pay membership dues to
plaintiff as a condition of ownership (see Perkins v
Kapsokefalos, 57 AD3d 1189, 1191-1192 [2008], lv denied 12 NY3d
705 [2009]). Plaintiff thereafter obtained a judgment against
defendants for $7,101 reflecting dues owed and interest from
October 2002 through July 2007.

      Although defendants paid the judgment, they nonetheless
continued to refuse to pay membership dues and, in 2012,
plaintiff commenced this action seeking to recover the
outstanding amounts due since August 2007. In their
counterclaim, defendants alleged, among other things, that
plaintiff had not properly authorized the fees imposed and the
services provided were not reasonable or necessary. Plaintiff
moved for summary judgment granting their claim for payment of
the outstanding dues and dismissing the counterclaims.
Defendants cross-moved seeking to dismiss the complaint or, in
the alternative, compel discovery. Supreme Court granted
plaintiff's motion and dismissed the cross motion in its
entirety. Defendants appeal.

      The issue of whether defendants are obligated to pay
pursuant to an implied contract was previously litigated in the
prior action and decided in plaintiff's favor (see Perkins v
Kapsokefalos, 57 AD3d at 1192). The doctrine of res judicata
thus precludes defendants from claiming that clear and convincing
proof of an implied contract is again required in order for them
to be obligated to pay plaintiff's monthly dues (see Matter of
Hunter, 4 NY3d 260, 269-270 [2005]; O'Brien v City of Syracuse,
54 NY2d 353, 357 [1981]; Tovar v Tesoros Prop. Mgt., LLC, 119
AD3d 1127, 1128-1129 [2014]). Moreover, to the extent that
defendants challenge the authority of plaintiff to impose those
dues as never having been established, such a claim could have
been raised in the prior action and, therefore, it is likewise
barred by res judicata (see O'Brien v City of Syracuse, 54 NY2d
at 357-358; Tovar v Tesoros Prop. Mgt., LLC, 119 AD3d at 1129;
Matter of Feldman v Planning Bd. of the Town of Rochester, 99
AD3d 1161, 1162-1163 [2012]).
                              -3-                519976

      Notwithstanding defendants' request that we impose a new
standard for determining whether they should be required to pay
for services that have been undertaken by plaintiff since the
prior judgment and that they do not deem to be reasonably
necessary for their use of their property, the Court of Appeals
has made clear that an implied contract for a community
homeowners' association "includes the obligation to pay a
proportionate share of the full cost of maintaining . . .
facilities and services, not merely the reasonable value of those
actually used by any particular resident" (Seaview Assn. of Fire
Is. v Williams, 69 NY2d 987, 989 [1987]; see Nevel v Shelter Is.
Hgts. Prop. Owners Corp., 204 AD2d 700, 701 [1994]). We review
plaintiff's action in undertaking such expenditures under the
business judgment rule, which, in the absence of "claims of
fraud, self-dealing, unconscionability, or other misconduct," is
limited to an inquiry of "whether the action was authorized and
whether it was taken in good faith and in furtherance of the
legitimate interests of the corporation" (Matter of St. Denis v
Queensbury Baybridge Homeowners Assn., Inc., 100 AD3d 1326, 1327
n 2 [2012] [internal quotation marks and citation omitted]; see
Matter of Levandusky v One Fifth Ave. Apt. Corp., 75 NY2d 530,
533 [1990]).

      Here, we are not persuaded by defendants' contentions that
the actions taken by plaintiff since the prior judgment are
either unauthorized or unnecessary. Plaintiff supported its
motion for summary judgment with an affidavit from its president
and a copy of its bylaws. The president described the services
provided and affirmed that the monthly fees were properly voted
upon and approved, and that plaintiff's business and meetings
were conducted in conformance with its bylaws. Copies of
plaintiff's financial reports were also submitted in support of
the motion. Inasmuch as plaintiff supported its motion for
summary judgment with proof that the fees were "authorized, made
in good faith, and in furtherance of [plaintiff's] legitimate
interests" (Levine v Greene, 57 AD3d 627, 628 [2008]), defendants
were required to come forward with proof in admissible form
"sufficient to require a trial of material questions of fact"
(Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). We
agree with Supreme Court that defendants failed in this regard as
they offered only "mere conclusions, expressions of hope or
                                 -4-                519976

unsubstantiated allegations" (id.; see Forest Hills Gardens Corp.
v Kamparosyan, 63 AD3d 879, 879 [2009]; Forest Hills Garden Corp.
v West Side Tennis Club, 23 AD3d 338, 340 [2005]). Nor have
defendants established that discovery should have been ordered,
as they merely speculated that discovery would yield relevant
evidence (see Jacobs v Mazzei, 112 AD3d 1115, 1118 [2013], lv
dismissed 22 NY3d 1172 [2014]; Saratoga Assoc. Landscape
Architects, Architects, Engrs. & Planners, P.C. v Lauter Dev.
Group, 77 AD3d 1219, 1222 [2010]).

      The parties agree, however, that Supreme Court improperly
calculated the interest owed on the outstanding dues when it
issued the judgment.1 CPLR 5001 (b) provides that, where
"damages were incurred at various times, interest shall be
computed upon each item from the date it was incurred or upon all
of the damages from a single reasonable intermediate date."
Adopting an intermediate date of October 1, 2010 and applying the
statutory interest rate of 9% results in interest of $531 per
year, or $1.45479 per day. Based on the award of $5,900 and the
1,193 days between October 1, 2010 and January 6, 2014, the date
of the final order, the resulting interest is $1,735.56 and the
judgment should be modified accordingly. Defendants' remaining
contentions have been considered and determined to be without
merit.

         Peters, P.J., Garry and Devine, JJ., concur.




     1
        Defendants appealed from Supreme Court's final order, but
not the subsequently entered final judgment. Inasmuch as the
final judgment does not materially deviate from the final order,
we deem the appeal as also being taken from the judgment (see
CPLR 5520 [c]; Miller v Moore, 68 AD3d 1325, 1326 n [2009]).
                              -5-                  519976

     ORDERED that the order is affirmed, with costs.

      ORDERED that the judgment is modified, on the law, by
computing interest on the damages awarded from October 1, 2010 in
accordance with this Court's decision, and, as so modified,
affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
