motion must be denied, regardless of the sufficiency of the opposing papers. Alvarez v.
Prospect Hospital, 68 NY2d 320 (1986); Ayotte v. Gervasio, 81 NY2d 1062 (1993).
Granting a motion for summary judgment is the functional equivalent of a trial, therefore it is
a drastic remedy that should not be granted where there is any doubt as to the existence of a
triable issue. Rotuba Extruders v. Ceppos, 46 NY2d 223 (1977). The court's function on
these motions is limited to "issue finding," not "issue determination." Sillman v. Twentieth
Century Fox Film , 3 NY2d 395 (1957). When issues of law are raised [*3]in connection with a motion for summary judgment, the court may
and should resolve them without the need for a testimonial hearing. Hindes v. Weisz, 303
AD2d 459 (2nd dept. 2003). Since each party has moved for summary judgment, each bears the
initial burden of establishing their respective motions or raising factual disputes that would
defeat the other movant's motion.
The defendant argues that the second and third causes of action must be dismissed as a
matter of law because they do not apply to the relationship that exists between a condominium
unit owner and the board of managers. The court agrees. Condominium-unit owners are not
protected by the warranty of habitability, since they do not hold a lease for the premises, but
possess a fee-ownership interest in the subject premises. Linden v. Lloyd's Planning Service,
Inc., 299 AD2d 217 (1st Dept 2002); see also Frisch v. Bellmarc Management, Inc.,
190 AD2d 383 (1st Dept 1993); McCarthy v. Board of Managers of Bromley
Condominium, 271 AD2d 247 (1st Dept 2000). Defendant is also entitled to summary
judgment on plaintiff's claim for constructive eviction, because the parties do not stand in a