PHILIP S. STRANIERE, J.

Claimant, Lejla Esposito, commenced this day small claims action against the defendants, John Barr, Florence Dennehy, and Woodbrooke Estates Condominium Section 2B, alleging that the defendants improperly imposed fines upon her and denied her the use of the community pool. A trial was held on July 31, 2015. Claimant represented herself. Defendants were represented by counsel.

The name of Florence Dennehy sued herein as Florence Hennehy, was amended to reflect the correct spelling. There is also an entity called, "Woodbrooke Estates Home Owners Association, Inc.", which is not named as party.

Claimant stated that she is the owner of 44 Cypress Loop, Staten Island, New York a unit in the development known as Woodbrooke Estates Condominium Section 2B. She testified that she is up to date with her monthly assessments and that the current dispute arose because she failed to timely provide proof to the Board of Managers that she had had her dryer vent and duct work cleaned. Claimant asserted that because of a fire in another unit caused by that owner not cleaning the dryer vent, the Board of Managers required all other unit owners to provide proof of cleaning their respective duct work. The initial completion date was January 31, 2015. The Board extended the date for all home owners until February 15, 2015 because of the harsh winter weather.

Claimant admits that because of health issues she initially requested an extension to clean the venting and provide proof which the Board granted. The documents she submitted indicate that her health issues all arose after the extension date of February 15, 2015 as her doctor's note only has one visit prior to that date. She contends that she completed the cleaning but that she did not submit the required documentation because of her health problems. The receipt she produced was dated March 25, 2015. As a result claimant not timely providing proof, the Board imposed a fine of $100.00 and an additional $5.00 a day penalty. Because she had the work completed in a timely manner, she refused to pay the fine and per diem penalty. As a result the claimant was denied use of the community pool for as long as the levy remained unpaid which has become for the entire summer.

Defendants do not dispute any of the testimony of the claimant. They stated that had the claimant either sent in the proof of compliance with the cleaning requirement or requested additional time to do so, she would not have incurred either the fine or the penalty.

At the close of claimant's case, defendants moved to dismiss the claims against the two individuals as they are board members acting in that capacity and have no personal liability. Defendants also moved to dismiss claimant's entire complaint on the merits because the claimant is not asking for money damages in this action but is really seeking to have the court declare the Board's action improper.

Defendants' motion to dismiss as to the two individual defendants must be granted. It is clear that they are officers of the condominium association and were acting in that capacity at all times. They have no personal liability.

Defendants' motion to dismiss as to Woodbrooke Condominium, as the remaining defendant, must also be granted. The small claims part of the Civil Court may only grant the relief in regard to causes of action for money only not in excess of five thousand dollars [New York City Civil Court Act (NYCCCA) §1801]. The testimony of the claimant is that she never paid the fine and the penalties. Therefore she has no claim for money damages. Had she paid the fine and penalties and then came to court seeking a refund alleging that the imposition of them by the Condominium violated the declaration and by-laws, she would have had a cognizable claim on its face. In effect because she has not paid those charges, she is asking the small claims court to declare the action of the defendant a nullity and issue an order canceling the obligation. The small claims court lacks such power.

In fact, it is doubtful that the Civil Court has the jurisdiction to grant the relief the claimant is seeking. NYCCCA §212-a gives the court authority grant declaratory relief only in two limited situations. Neither of which applies to the current fact pattern. Claimant's relief may be in the Supreme Court with an action brought pursuant to Civil Practice Law and Rules (CPLR) §3001.

On the other hand, had the court had to decide this case on the merits, that is had the claimant actually made the payments and sought to recover those monies, it is clear that the defendant would have some evidentiary issues.

One problem is whether unit owner's privileges may be suspended for failure to pay either a "fine" and a "penalty" or only for nonpayment of an "assessment." The By-Laws of the Woodbrooke Estates Home Owners Association, Inc. in Article VI provides:

Section 5. Suspension of Membership. The rights of membership are subject to the payment of periodic assessments levied by the Board of Directors, the obligation of which assessment is imposed against each Member and becomes a lien upon the property of any Owner against which such assessments are made as provided by Article VI of the Declaration. During any period in which a Member shall be in default in the payment of any assessment levied by the Association, the voting rights, if any, of such Member and the Member's right to the use of the Common Properties may suspended until such assessment has been paid. Such rights of a Member may also be suspended, after notice and a hearing, for a period not to exceed thirty (30) days, for violation of any rules and regulations established by the Board of Directors governing the use of the Common Areas.

The language of the above section makes it clear that suspension of membership rights can be triggered by the nonpayment of an assessment. Therefore how the governing documents define "assessment" is a key question.

Article IV of the Declaration of Covenants, Restrictions, Easements, Charges & Liens For Woodbrooke Estates provides:

Article VI of the Declaration states:

Based on these sections, the imposition of late fees and penalties do not qualify as an "assessment." An assessment is an obligation levied against all of the unit owners based on the budgetary needs of the condominium and are not a charge imposed on an individual unit owner. Therefore the defendants must establish a separate basis for imposing them against the claimant.

The By-Laws of Woodbrooke Estates Condominium — Section II-B provides:

Based on the foregoing it is apparent that "fines" and "penalties" are not "assessments." The defendants cannot use the procedure for enforcement of an assessment against this claimant home owner. However, it is axiomatic that the Board in its management functions and using its best business judgment can impose reasonable rules and regulations governing home owners as well as levying fines and penalties for violation of them.

Therefore in order to levy the fine and penalty on the claimant, the defendant needed to provide proof that the Board, in compliance with the Declaration and By-laws, passed resolutions requiring the certification of the cleaning of the dryer vent, providing for a fine for the failure to do so, and a penalty in the event the unit owner failed to pay the fine. The defendant has submitted documentation that the fine and penalty were levied and that pool privileges would be denied for nonpayment, but no proof when such resolutions and procedures were put into place.

Judgment for defendants. Claimant has failed to prove her prima facie case. The small claims part cannot grant the relief she is seeking. Her other contentions that the Board members "harass" her and give certain home owners more privileges than others are not sustainable. If claimant is dissatisfied with how the Condominium is being run, the declaration and by-laws provide avenues to address those situations and provide a basis for an action in the Supreme Court if all delineated avenues are exhausted.

Judgment for defendants. Claimant's cause of action is dismissed on the merits.

Exhibits, if any, will be available at the office of the clerk of the court thirty days after receipt of a copy of this decision.

The foregoing constitutes the decision and order of the court.