Brookview Homeowners' Ass'n v. Mark IV Construction Co.

— Order unanimously affirmed without costs. Memorandum: Supreme Court properly concluded that the responsibility of defendant Mark IV Construction Co., Inc. to pay maintenance assessments is limited by section 5.04 of the Declaration Establishing Brookview Homeowners’ Association, Inc. to any deficit in plaintiff Association’s operating expenses. Supreme Court abused its discretion, however, in granting plaintiffs motion to renew, as plaintiffs motion was predicated upon a legal theory not advanced in its original motion for partial summary judgment or even in its complaint (see, Foley v…