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Harbor View Condominium Association, Inc v. Manhattan Skyline Iii

July 29, 2011

HARBOR VIEW CONDOMINIUM ASSOCIATION, INC., PLAINTIFF-APPELLANT,
v.
MANHATTAN SKYLINE III, LIMITED PARTNERSHIP, B & A PROPERTIES A/K/A BARRY L. COHEN AND ALAN SACKMAN, CITY VIEW REALTY CO., L.P., A NEW YORK LIMITED PARTNERSHIP, DEFENDANTS-RESPONDENTS, AND BJC SERVICE CO., A NEW YORK GENERAL PARTNERSHIP, DEFENDANT/THIRD-PARTY PLAINTIFF,
v.
JOSEPH A. POJANOWSKI, III, THIRD-PARTY DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Hudson County, Docket No. C-118-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 10, 2011

Before Judges Parrillo, Yannotti and Skillman.

Plaintiff Harbor View Condominium Association (Association) appeals from an order entered by the trial court on March 12, 2010, which dismissed its claims against defendants Manhattan Skyline III, L.P. (Manhattan Skyline); B & A Properties (B & A); and City View Realty Co., L.P. (City View). We affirm.

I.

In the late 1980s, Manhattan Skyline purchased an apartment building in Union City, New Jersey, which it renovated and converted into condominium units, pursuant to the Condominium Act, N.J.S.A. 46:8B-1 to -38. In accordance with that Act, Manhattan Skyline executed a Master Deed and recorded it on November 24, 1987, along with a certificate of incorporation and bylaws for the Association.

The Master Deed described the condominium as a "five-story[,] multi-family" structure with 125 residential units, along with general common elements. The Master Deed included a schedule of each unit's percentage interest in the common elements of the building, as required by N.J.S.A. 46:8B-9. It also included the architect's floor plans, which provided for a "public laundry room" on the basement level.

On June 15, 1989, Manhattan Skyline sent to the unit owners an amended public offering statement, in which it advised that the Master Deed had "inadvertently omitted" an interest in the common elements for the "commercial unit (laundry facility)." Manhattan Skyline asked the unit owners to provide written consent to amend the Master Deed "to allow for this correction" and to reallocate their percentage interests in the common elements.

On January 3, 1990, Manhattan Skyline recorded an amendment to the Master Deed, which created Unit L, a commercial laundry unit, thereby increasing the total number of units to 126. Unit L was granted a 0.8609 percentage interest in the common elements, which decreased the percentage interests held by the other unit owners. On February 1, 1990, Manhattan Skyline executed a deed transferring Unit L to B & A for $105,000.

Alan Sackman (Alan) was the owner of Sackman Enterprises, which was the principal owner and limited partner of Manhattan Skyline. B & A was a general partnership of Alan and Barry Cohen (Cohen), a New Jersey realtor. Cohen managed the condominium for Manhattan Skyline. Cohen marketed the units and collected the maintenance charges. Sackman Enterprises employed Alan's son, Carter Sackman (Sackman).

The Association's bylaws provided, among other things, that Manhattan Skyline would have control of the board of directors until sixty days after it sold seventy-five percent of the units. In 1990 or 1991, Manhattan Skyline filed for bankruptcy protection. At the time, seventy units remained unsold. In the bankruptcy proceedings, Manhattan Skyline transferred the unsold units to City View, which gave City View control of the Association's board of directors.

City View is owned by twelve investors. Its general partner is a company owned by Sackman, called Union City Development Co. At some point in the early 1990s, City View appointed Sackman as president of the Association's board of directors. Sackman signed the deed transferring Unit L to B & A.

In October 1996, certain unit owners filed an action in the Chancery Division against the Association, City View and Sackman. Souffront v. Harbor View Condo. Ass'n, Inc., Docket No. C-129-96. The plaintiffs in that case alleged that the Association did not have a duly-elected board of directors; City View failed to collect $62,000 from Manhattan Skyline for "common area charges" for unsold units; and Sackman unlawfully assessed certain charges against unit owners and breached his fiduciary duty to them. The plaintiffs sought an order compelling the election of three unit owners to a seven-member board of directors and an audit and accounting of the Association. It appears that, at some point, the matter was transferred to the Law Division.

In May 1997, the plaintiffs filed an amended complaint in Souffront in the Law Division. They alleged that City View, Sackman and the Association breached fiduciary duties owed to them. They claimed that Association property had been used to benefit City View and/or Sackman. They further claimed that ...


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