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Court Discusses Proper Procedure for Suing and Serving Condominium

A recent court decision addresses how a condominium is to be sued and served with process.  The condominium in this case, like most condominiums in New York, is an unincorporated association.  Applying the New York General Associations Law, the court held that “[a]n unincorporated association may not be sued directly as an entity.  Rather, a plaintiff who wishes to raise claims against an association must instead bring an action against the association’s president or treasurer in that officer’s representative capacity.”  Service of process must then be made upon the president or treasurer.  Here, plaintiff named the condominium’s board of managers as the defendant and served the summons and complaint on the condominium’s managing agent.  The court held that this did not satisfy the applicable service requirements.  While naming the board of managers as the defendant might be considered a “correctable irregularity,” the failure to make proper service was not and required dismissal of the action.  The court did not discuss Real Property Law § 339-n(7), which provides for service on a condominium through the Secretary of State.

This is one of several recent decisions involving condominiums in which courts have held that the proper party to be named is the president and/or treasurer.  Typically, the board of managers is named as the plaintiff or defendant and no one disputes that the Board is the correct party.  New York’s appellate courts, which are likely to have the last word, have not yet addressed this issue.

Plaintiff’s claims against the managing agent were also dismissed.  As an agent for a disclosed principal, the managing agent could be liable only if it either committed “affirmative acts of negligence” or was in exclusive control of the premises.  Plaintiff’s allegations did not satisfy either of these conditions.  Plaintiff’s claim for breach of fiduciary duty was dismissed, because the managing agent owes a fiduciary duty only to the board of managers, not to an individual unit owner.  Plaintiff’s claim for breach of contract was dismissed because there was no contract between plaintiff (or any other unit owner) and the managing agent.    Makhnevich v. Board of Managers of 2900 Ocean Condominium, 2021 N.Y. Misc. LEXIS 4082, 2021 N.Y. Slip Op. 50679(U) (Sup. Ct. N.Y. Co. July 21, 2021).