Shrub Oak Park Community Ass'n v. Fiducia

In an action to recover defendants’ pro rata share of the cost of maintaining certain communal facilities, the plaintiff appeals (by permission) from an order of the Appellate Term of the Supreme Court for the Ninth and Tenth Judicial Districts, dated May 25, 1977, which (1) reversed a judgment of the Justice Court of the Town of Yorktown, dated July 19, 1976, and (2) dismissed the complaint. Order affirmed, with costs. The communal facilities involved are of a nonessential, or recreational, nature. The defendants’ deed contains no easement to use these facilities. Hence, since defendants are not thereby entitled to use the facilities, they are not responsible for paying a pro rata share of the costs of maintaining them (see Tides Prop. Owners Assn, v Paolillo, 56 AD2d 888; see, also, Mohegan Colony Assn, v Picone, 61 AD2d 809). Mollen, P. J., Hopkins, Titone, Hawkins and O’Connor, JJ., concur.