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Decided on December 20, 2010
Supreme Court, Queens County

3472/09

For the Plaintiff: Schneider Mitola, LLP, by Diana Valentin-Gileno & Kristin M. LaScala, Esqs.,
666 Old Country Road, Garden City, NY 11530
Defendant Ayush Dadon, pro se
Charles J. Markey, J.

Plaintiff, The Board of Managers of The Village Mall at Hillcrest Condominium (Village Mall) moves pursuant to CPLR 3212 for summary judgment, replacing "John Doe No.1" with Nayette
Dadon, and "John Doe #2" with "John" Dadon, excising from the caption "John Doe #3" through "John Doe #10" inclusive; and pursuant to RPAPL 1321 appointing a referee to compute the amount due to plaintiff.
The plaintiff is a condominium created pursuant to a Declaration of Condominium recorded on July 25, 1973 in the Office of the Register of the City Of New York, Queens County. In addition to the Declaration, the By-Laws for Village Mall were also duly recorded on July 25, 1973.
Pursuant to the Governing Documents of Village Mall, all sums assessed by the Board of Managers as common charges, but unpaid together with interest at the rate of 6% per annum are chargeable to the unit owner, and constitute a lien on their unit. Additionally, the Condominium shall have the right to recover all costs incurred including reasonable attorney's fees.
By deed dated August 23, 1994, the defendant Dadon purchased premises known as 152-18 Union Turnpike, Unit 2PHS, a/k/a/ Unit PHS, Flushing, New York (the Premises), which is a unit in the condominium. The plaintiff alleges that as of January 9, 2008, the defendant Dadon had an outstanding balance of unpaid common charges in the sum of $17,536.41.
As a result of the Defendant Dadon's failure to pay the aforesaid common charges, on [*2]September 24, 2008, a verified lien for unpaid common charges in the amount of $18,906.56 was filed with the Office of the Register of the City of New York, Queens County.
The plaintiff commenced this action by filing a copy of the summons and complaint and notice of pendency on February 13, 2009. Plaintiff seeks to foreclose on a lien for unpaid common charges. The defendant, Ayush Dadon was served with the summons, verified complaint and notice of pendency pursuant to CPLR 308(2) on February 16, 2009, by delivering it to a person of suitable age and discretion at the Premises. On February 17, 2009, the summons, verified complaint, and notice of pendency was mailed to the defendant Dadon at the Premises.
On or about March 27, 2009, the defendant Dadon interposed an answer. All other defendants did not answer or appear.
That branch of the motion by plaintiff for leave to amend the caption as proposed, is granted.
On a motion for summary judgment in a foreclosure action, a plaintiff must make a prima facie showing by producing the contract and the sum due based upon the default. An Offering Plan for a Condominium including the Condominium's By-Laws and Declaration, among other documents, is a contract as a matter of law. The plaintiff submitted records that established that the defendant Ayush Dadon had failed to pay certain common charges. The obligation of a condominium owner to pay common charges is absolute and unavoidable (Board of Managers of First Ave. Condo v Shande, 143 Misc 2d 1084 [NYC Civ Ct New York County 1989]). The plaintiff also established that it properly filed a lien for the outstanding common charges. The submissions, therefore, establish plaintiff's prima facie entitlement to summary judgment as against defendant Ayush Dadon.
In opposition, the defendant Ayush Dadon failed to raise a triable issue of fact. The defendant's argument that summary judgment should be denied because he owes a lesser amount than claimed is without merit. It has long been held that once a party's entitlement to foreclosure has been established, a discrepancy amongst the figures does not warrant an invalidation of the entire proceeding (Crest/Good Manufacturing Co., Inc. v Baumann, 160 AD2d 831 [2nd Dept. 1990]). A dispute as to the exact amount owed, therefore, does not preclude the granting of summary judgment as to liability. Any such dispute may be resolved after a reference pursuant to RPAPL 1321.
Furthermore, the defendant's claim that he made a partial payment in an attempt to settle the owed maintenance charges does not warrant denial of the summary judgment motion. "As a general rule, a tender must include everything to which the creditor is entitled, including interest to the time the tender is made, or else it is not legally effective" (National Sav. Bank of Albany v Hartmann, 179 AD2d 76, 77 [3rd Dept.], lv. to appeal denied, 79 NY2d 759 [1992], quoting 83 NY Jur 2d, "Payment and Tender"

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