I. Latimer

Bari Stern Zittell, a judgment creditor of Vince Turano, brought a motion for a garnishment order against the Estate of Giulia Turano, from which Vince Turano was a beneficiary.

The Estate, through its trustee Angela Lucca, failed to comply with the notice of garnishment or file a garnishee's statement, arguing that Vince Turano owed Angela Lucca money.

The court denied the Estate's request for an adjournment, finding no exceptional circumstances, and granted Zittell's motion.

The court ordered the Estate to pay Zittell Vince Turano's share of the estate proceeds and fixed costs.

The plaintiff moved under Rule 37.14(1) to set aside an order dismissing its construction lien action.

The action had been dismissed after the plaintiff failed to attend a motion following the removal of its former counsel of record.

The court found that the plaintiff did not receive actual notice of the removal order and that its failure to attend the dismissal motion was due to an accident or mistake by its president, who mistakenly believed former counsel would attend.

The court set aside the dismissal order, finding the plaintiff moved forthwith, without unreasonable delay, and that the defendant would not be prejudiced.

The plaintiff subcontractor moved for summary judgment for $166,063.92 owed by the defendant contractor on a completed construction project.

The defendant admitted the debt but refused to pay, claiming a right of set-off under section 12 of the Construction Lien Act due to an unliquidated $1.2 million counterclaim against the plaintiff arising from a separate, ongoing project.

The court dismissed the summary judgment motion, holding that section 12 permits a trustee to retain trust funds against unproven claims from other projects, provided the funds are segregated.

The court ordered the action consolidated with the ongoing litigation regarding the other project.

Unit owners brought an oppression application under s. 135 of the Condominium Act alleging that a condominium corporation acted oppressively by deactivating FOBs and denying access to both a condominium unit and recreational facilities.

The court found the corporation acted improperly when it deactivated the owners’ FOBs without notice, temporarily preventing access to the unit, which constituted oppressive and unfairly prejudicial conduct.

However, the denial of access to recreational facilities was not oppressive because the applicants refused reasonable requests to complete a resident information form and provide identification establishing residency.

The court held that the inability to access amenities resulted from the applicants’ own refusal to comply with reasonable condominium management requirements.

Nominal damages were awarded for the brief interruption of access to the unit.