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Jon Kolbrener Obtains Dismissal on Appeal of Counterclaims

Jon Kolbrener secured dismissal on appeal of 3 out of 4 counterclaims asserted against a Cond-op Board in an action to recover an unpaid assessment from a professional condominium unit for work required on the building’s elevator and façade.  The defendant was a medical practice.  Its answer included counterclaims which challenged the authority of the Board to impose the assessment.  It argued that the Board: (i) was improperly constituted, (ii) acted outside its authority in levying the assessment, in breach of its fiduciary duty, (iii) engaged in self-dealing by failing to offer the medical practice the option to join the Co-op residents in financing the assessment, and (iv) committed prima facie tort.  The Appellate Court dismissed the first, second and fourth counterclaims.  Discovery will proceed on the third counterclaim.

In dismissing the second counterclaim, the Court recognized that the Board had the authority to authorize the assessment.  In doing so the Court rejected the heart of the defendant’s opposition to the effort by the Board to enforce a lien for the unpaid assessment.