These motions arise from an action brought by plaintiffs, the Department of Environmental Protection of the City of New York and the New York City Water Board, to [*2]collect on an unpaid water bill, for which plaintiffs seek to hold liable the board of managers and unit owners of a condominium building located in midtown Manhattan.

On motion sequence 001, this court granted the motion to dismiss for failure to state a cause of action of unit-owner defendants Cassa Properties LLC, Enigme Capital C.V. LLC, Cassa 45 LLC, Cassa 46 LLC, and Cassa 28 LLC.^[FN1] (See Department of Env. Protection of the City of NY v Board of Mgrs. of the Cassa NY Condominium, 2024 NY Slip Op 50490[U], at *2-5 [Sup Ct, NY County 2024].) For that reason, the court also denied plaintiffs' default-judgment motion (mot seq 002) against several other unit-owner defendants.^[FN2] (See id. at *5.)

On motion sequences 003 and 004, other unit-owner defendants move to dismiss plaintiffs' claims as asserted against them. On motion sequence 005, plaintiffs move under CPLR 2221 for leave to renew and reargue this court's order granting that motion to dismiss. (See NYSCEF No. 90 [notice of motion].) Plaintiffs' request for leave to reargue is granted. On reargument, this court adheres to its decision on motion sequence 001. The motions to dismiss asserted by the other unit-owner defendants are granted.

This court addresses plaintiffs' reargument motion first, because the resolution of that motion will affect the outcome on the unit-owners' motions to dismiss.

CPLR 2221 (d) provides that a motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion." A movant seeking reargument is therefore required to identify issues of fact or law that the court overlooked or misapprehended in the decision at issue—not merely "argue once again the very questions previously decided." (Foley v Roche, 68 AD2d 558, 567 [1st Dept 1979].)

Plaintiffs argue principally that they should have the opportunity to reargue because this court's decision gave weight to Jerdonek v 41 W. 72 LLC (143 AD3d 43 [1st Dept 2016]), which was not cited by movants on motion sequence 001 and as a result was not briefed by plaintiffs. [*3](See NYSCEF No. 91 at ¶¶ 15-20.) The court agrees that plaintiffs should have the opportunity to contest Jerdonek's applicability to this action.^[FN3] Leave to reargue is therefore granted. On reargument, this court adheres to its prior decision.

This court's ruling on motion sequence 001 was based in part on the rule articulated in Jerdonek that "'a statute imposing obligations or liabilities upon the 'owner' of real property does not give rise to a claim against the owners of individual condominium units where the claim arises from the common elements or concerns a duty not connected with any individual unit.'" (Cassa NY Condominium, 2024 NY Slip Op 50490[U], at *3, quoting Jerdonek, 143 AD3d at 48 [collecting cases].) Plaintiffs now put forward two arguments why Jerdonek is distinguishable. (See NYSCEF No. 92 at 5-8.) Neither is persuasive.

Plaintiffs argue that Jerdonek involved a personal-injury claim related to a condominium common element (the building's boiler) "which was exclusively under control of the condominium's board," whereas the claims here seek "to recover unpaid water and sewage services that were provided to both the condominium and to the individual deeded unit owners." (Id. at 5.) But plaintiffs' claims against the individual unit owners do not seek to recover the value of the water/sewage services that it provided to them, in particular (whether assessed in terms of the actual water/sewage usage, the unit owners' fractional interest in the building's common elements, or otherwise). Rather, plaintiffs are seeking to hold each individual unit owner liable for the water/sewage services that plaintiffs provided to the entire building as a whole.^[FN4] And as this court noted in its prior decision, plaintiffs themselves represented in [*4]opposing the motion to dismiss that responsibility for paying the building-wide water/sewage charges rested with the condominium board, not individual unit owners. (See Cassa NY Condominium, 2024 NY Slip Op 50490[U], at *3-4, quoting NYSCEF No. 33 at ¶¶ 25-26.) Thus, just as in Jerdonek, plaintiffs' claims "concern[] a duty not connected with any individual unit," but one borne by (and not discharged by) the board. (143 AD3d at 48.)

Plaintiffs also argue that their claims come within a potential exception identified in Jerdonek that might apply if "the condominium in [the] case did not have a functioning and adequately capitalized board of managers" at the time the claim accrued. (Jerdonek, 143 AD3d at 50; see NYSCEF No. 91 at ¶¶ 30-33; NYSCEF No. 92 at 6-7.) In particular, plaintiffs contend, this exception applies because the "Cassa NY Condominium has not demonstrated that it has a fully functioning or capitalized Board of Managers," that it has "a policy of insurance that will fully cover the Plaintiffs' claim," or, more broadly, that it has "the necessary financial resources to fully satisfy any judgment rendered in the Plaintiffs' favor." (NYSCEF No. 92 at 6.) This contention misplaces the applicable burden of proof.

If a fact goes to one of the "essential elements that must be proven in order to sustain the particular cause of action at issue," it must be alleged in the complaint. (US Bank N.A. v Nelson, 169 AD3d 110, 113 [2d Dept 2019].) If, on the other hand, a factual contention "goes beyond the essential elements of the cause of action"—i.e., it relates to "'matters that are not the plaintiff's burden to prove as part of the cause of action'"—it must be pleaded (and ultimately proven) as a defense. (Id., quoting Siegel & Connors, NY Prac § 223 [6th ed & Dec. 2018 update] [alteration omitted].) In other words, it is plaintiff's burden to plead and prove those facts without which no claim will lie. It is defendant's burden to plead and prove those facts needed to defeat a claim that otherwise would lie.

For present purposes, therefore, the question is whether the rule under Jerdonek is that plaintiffs may not hold individual unit owners jointly and severally liable unless the condominium board is nonfunctioning or inadequately capitalized; or that plaintiffs may hold individual unit owners jointly and severally liable unless the board is operational and adequately capitalized. In the former scenario, the burden of pleading and proof is on plaintiffs. In the latter scenario, the burden is on defendants. Jerdonek makes clear that the former scenario applies. That is, Jerdonek treats the lack of a functioning/capitalized board of managers as an exception to the general principle of nonliability of individual unit owners—not the other way around. (See 143 AD3d at 48-50, 51.) The burden to show the absence of a functioning/capitalized board is thus on plaintiffs; and their contrary arguments on this motion miss the mark. Indeed, Jerdonek notes, twice, that the plaintiffs in that case did not contend that the condominium lacked "a functioning and adequately capitalized board of managers at the time of plaintiff's accident." (See id. at 49, 51.)

Plaintiffs do not adequately allege, or otherwise establish on this motion, that the Cassa NY condominium board is nonfunctioning or lacks the financial resources to pay a judgment. Instead, they provide only speculative and unsupported assertions of counsel. (See NYSCEF No. 91 at ¶¶ 33-35; NYSCEF No. 92 at 6-7.) That is not enough.

Plaintiffs also argue that this court erred in dismissing their claims as contrary to the applicable statutory language, and that this court should revisit this aspect of its prior order. [*5](NYSCEF No. 92 at 4-5.) Plaintiffs' argument is both procedurally and substantively flawed.

On motion sequence 001, this court held that plaintiffs' claims against the moving defendants, which seek to hold them jointly and severally liable for building-wide water bills, are not supported by the language of the statute on which plaintiffs' complaint relies, Public Authority Law § 1045-j (5). (See Cassa NY Condominium, 2024 NY Slip Op 50490[U], at *3.) Section 1045-j (5) provides that unpaid water rents "shall constitute a lien upon the premises served and a charge against the owners thereof" that can give rise to an action for the unpaid amounts. This court concluded that the of § 1045-j (5) language did not support claims against individual condominium unit owners based on a building-wide water bill, because individual unit owners do not own the building as a whole—only their own units and a fractional proportionate interest in the building's common elements. (See 2024 NY Slip Op 50490[U], at *3.)

Plaintiffs now contend that as municipal agencies, they may reasonably interpret "owner" in § 1045-j (5) "in the broadest sense possible" to "ensure that all customers who receive water and sewage service within the City of New York are held responsible for paying those charges." (NYSCEF No. 92 at 4-5.) In other words, plaintiffs say, "owner" of the "premises served," when the premises are a condominium building, may reasonably be read to encompass all individuals and entities that have an ownership interest in units within the condominium. Therefore, plaintiffs contend, this court (putatively) erred in interpreting "owner" more narrowly, and should correct that error now. Plaintiffs' contention fails for four independent reasons.

1. As a procedural matter, plaintiffs' contention about the permissible construction of "owner" is not properly before the court on this motion. Plaintiff did not raise this argument on motion sequence 001—notwithstanding that the grounds for dismissal raised on that motion foregrounded the question of the proper scope of "owner" in § 1045-j (5).^[FN5] And a motion for reargument under CPLR 2221 "is not designed to afford the unsuccessful party successive opportunities . . . to present arguments different from those originally asserted." (William P. Pahl Equp. Corp. v Kassis, 182 AD2d 22, 27 [1st Dept 1992].)

Even if the court were to overlook this procedural defect, plaintiffs' interpretive argument would fail on its merits. Plaintiffs' argument is grounded in doctrines of agency deference. That is, because plaintiffs' administrative "area of expertise is the provision of water and sewage services throughout the entire City of New York," this court assertedly must defer to their broad construction of "owner" in § 1045-j (5). (NYSCEF No. 92 at 4.) For the reasons set forth below, this court is not persuaded that deference would be required here.

2. Plaintiffs do not identify any prior instance in which they have accorded that broad scope to "owner" in the statute—whether in a prior regulation, administrative adjudication, guidance document, opinion letter, or otherwise. On this record, plaintiffs' appear to have adopted their proffered statutory interpretation to ward off dismissal in the current action. And an agency's "litigation posture, rather than its rulemaking authority," is not entitled to the benefit of "the rule of due deference" to agency interpretations. (Jiggetts v Perales, 202 AD2d 341, 342-343 [1st Dept 1994].)

3. Additionally, deference to reasonable agency of interpretations is called for when the "statute employs technical terms within the agency's expertise," such that the "agency has a greater competence in interpreting the statute than the courts." (Matter of Judd v Constantine, 153 AD2d 270, 272-273 [3d Dept 1990], citing Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459 [1980].) But "owner" in § 1045-j (5) is not a specialized technical term, such that its interpretation entails "knowledge and understanding of underlying operational practices or entails an evaluation of factual data and inferences to be drawn therefrom." (Matter of Lighthouse Pointe Prop. Assoc. LLC v New York State Dept. of Envtl. Conservation, 14 NY3d 161, 176 [2010] [internal quotation marks omitted].) Instead, its interpretation is "one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent," without deference to the agency. (Matter of Smith v Donovan, 61 AD3d 505, 508 [1st Dept 2009] [internal quotation marks omitted].) And plaintiffs do not identify any reason why "owner" here should somehow be treated as a technical term in this context, such that agency deference would be appropriate.^[FN6]

4. Moreover, an agency interpretation that "runs counter to the clear wording of a statutory provision . . . should not be accorded any weight." (Kurcsics, 49 NY2d at 459.) Here, plaintiffs are contending that when the premises receiving water/sewage services is a condominium building as a whole, each individual unit owner may be deemed a 100% owner of the condominium building (and thus be jointly and severally liable for building-wide water rents). (See NYSCEF No. 91 at ¶ 26.) But the Condominium Act provides that a condominium "unit" is "a part of the property," not the whole. (Real Property Law (RPL) § 339-e [14] [emphasis added].) A unit owner is "entitled to the exclusive ownership and possession of his unit" (id. § 339-h), coupled with an appurtenant "common interest as expressed in the [condominium] declaration" (id. § 339-i)—i.e., a "a proportionate, undivided interest" in the building's "common elements," calculated based on the terms of the declaration and formulae set out in the statute (id. § 339-e [5] [emphasis added]; see also id. § 339-i [1]). Thus, the "condominium regime consists of (a) individual fee ownership of 'units,' and (b) common ownership of 'common elements' by unit owners"—as distinct from an ownership structure in which "the entire parcel is . . . owned in common." (Jerdonek, 143 AD3d at 51 [internal quotation marks omitted].)

Plaintiffs' interpretation of "owner" in Public Authority Law § 1045-j (5) thus runs counter to the fundamental nature of condominium ownership—as defined and delimited by statute. This conflict is underscored by the Appellate Division's repeated conclusion that other statutes and municipal ordinances imposing obligations or liabilities on the "owner" of real property do not support claims against individual unit owners arising from the condominium's common elements or building-wide responsibilities. (See e.g. Jerdonek, 143 AD3d at 48-49 [Labor Law §§ 240 [1], 241 [6]]; Lewis v Lester's of NY, Inc., 205 AD3d 796, 798 [2d Dept 2022] [Labor Law § 240 [1]]; Ortiz v Times Plaza Dev. Corp., 138 AD3d 704, 705 [2d Dept 2016] [Administrative Code of the City of New York § 7-210]; Araujo v Mercer Sq. Owners [*6]Corp., 95 AD3d 624, 624 [1st Dept 2012] [same]; Pekelnaya v Allyn, 25 AD3d 111, 114-115 [1st Dept 2005] [Multiple Dwelling Law § 78].)

In short, plaintiffs' belated argument that this court owes deference to their broad interpretation of "owner" in Public Authority Law § 1045-j (5) is foreclosed by the requirements of CPLR 2221. And even if the argument were not foreclosed, it would fail on its merits. This court adheres to its decision on motion sequence 001, granting the motion to dismiss filed by several of the unit-owner defendants.

On motion sequence 003, unit-owner defendant 29C Corp. moves under CPLR 3211 (a) (7) to dismiss the claims against it. On motion sequence 004, unit-owner defendant Z.H. Tang LLC moves under CPLR 3211 (a) (7) to dismiss the claims against it. The arguments raised by these defendants in favor of dismissal, and the arguments raised by plaintiffs in opposition to each motion, heavily overlap. This court therefore considers the two motions together. For the same reasons set forth above and in this court's decision on motion sequence 001, this court concludes that the motions to dismiss should be granted for failure to state a cause of action.^[FN7]

Accordingly, it is

ORDERED that plaintiffs' motion for leave to reargue this court's order entered April 30, 2024, is granted, and on reargument this court adheres to its determination in that order granting the motion to dismiss on motion sequence 001; and it is further

ORDERED that defendant 29C Corp.'s motion to dismiss is granted, and plaintiffs' claims are dismissed as against 29C Corp., with costs and disbursements as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further

ORDERED that defendant Z.H. Tang LLC's motion to dismiss is granted, and plaintiffs' claims are dismissed as against Z.H. Tang LLC, with costs and disbursements as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further

ORDERED that the balance of the claims in the action are severed and shall continue; and it is further

ORDERED that plaintiffs serve a copy of this order with notice of its entry on all parties appearing in the action by e-filing on NYSCEF; on all nonappearing parties by certified mail, return receipt requested, directed to their respective last-known addresses; and on the office of the County Clerk (by the means set forth in the court's e-filing protocol, available on the e-filing page of the court's website, https://ww2.nycourts.gov/courts/1jd/supctmanh/E-Filing.shtml), which shall enter judgment accordingly.