For Plaintiff/Petitioner: Matthew Sgambettera of counsel, The Sgambettera Law Firm, Saratoga Springs. For Defendants/Respondents West Main Street Cambridge Sewage Disposal Association, Inc., Vance Bateman, Shawn Bateman, Bridget Rowan and South Dominion Ltd S.A.1: William F. Ryan, Jr. of counsel, Tabner, Ryan & Keniry, LLP, Albany. DECISION AND ORDER On October 5, 1992, the respective owners of properties located at 39, 41-45, 47-49, 51, 55, and 57 West Main Street, Village of Cambridge entered into a written agreement to form “[a] corporation…for the purpose of managing [a] joint sewage disposal system and to hold title to the real property [up]on which some or all of the sewage disposal system [is] located” [NYSCEF document No. 23, at 1]. Defendant/respondent West Main Street Cambridge Sewage Disposal Association, Inc. (hereinafter the Association) was thereafter formed by Certificate of Incorporation dated December 8, 1992 and approved by Supreme Court (Dier, J.) on April 13, 1993 (see N-PCL 104 [e]). This Certificate of Incorporation — subsequently filed with the New York State Department of State — provides, in pertinent part: “The [Association] is a corporation as defined in [s]ection 102 (a) (5) of the New York State Not-for-Profit Corporation Law. The Association does not contemplate pecuniary gain or profit to the members thereof nor should it engage in any act or activity of sewage works as described in [a]rticle 10 of the Transportation Corporation Law, and the specific purposes for which it is formed are to provide maintenance, preservation and control of the common areas and sewage disposal within that certain tract of property located in the Village of Cambridge, Towns of Cambridge and White Creek, County of Washington, and State of New York (hereinafter called the ‘property’”) and to promote the health, safety and welfare of the owners within the property…” [NYSCEF document No. 24, at 2]. The Certificate of Incorporation further provides: “Every person or entity who is a record owner of a fee or undivided fee interest in any lot contained within the property is subject, by covenants of record, to assessment by the Association, including contract sellers, shall be a member of the Association…. Membership shall be appurtenant to and may not be separated from ownership of any lot which is subject to assessment by the Association. “The affairs of the Association shall be managed by a Board of Directors, who shall be members of the Association” [NYSCEF document No. 24, at
4-5]. Finally, the Certificate of Incorporation provides that “Amendment of the Certificate of Incorporation shall require assent of seventy-five percent (75 percent) of the entire membership” [NYSCEF document No. 24, at 8]. The By-Laws of the Association — apparently adopted contemporaneous with the Certificate of Incorporation — then provide: “The owners of the following parcels shall be deemed members of the Association: ADDRESS TAX MAP # 2 39 West Main Street, Cambridge, NY 41-45 West Main Street, Cambridge, NY 47-49 West Main Street, Cambridge, NY 51 West Main Street, Cambridge, NY 55 West Main Street, Cambridge, NY 57 West Main Street, Cambridge, NY “All present and future [o]wners, tenants and any other person who might use the facilities of the project in any manner are subject to these By-Laws and the rules and regulations promulgated hereunder” [NYSCEF document No. 42, at 4]. The By-Laws further provide that the Board of Directors may collect annual assessments and capital contributions, and that “[e]ach [p]arcel shall be entitled to one vote as set forth in the Declaration provided that [the p]arcel is current on all capital contributions and assessments” [NYSCEF document No. 42, at 5 (h)].3 The septic system was subsequently installed in 1993, with an absorption field, 1,250-gallon grease trap, two 2,000-gallon septic tanks, and a pumping station. Given its size, the system is regulated by the New York State Department of Environmental Conservation (hereinafter the DEC). According to plaintiff/petitioner (hereinafter petitioner), the grease trap and one 2,000-gallon septic tank are used by 39 West Main Street, and the other 2,000-gallon septic tank is used by 49 and 57 West Main Street. The absorption field and pumping station service the entire system. Defendants/respondents Vance Bateman and Shawn Bateman took title to 39 West Main Street in 2002, thereafter leasing the premises to a Chinese Restaurant that opened for business in 2003. Defendant/respondent Bridget Rowan took title to 57 West Main Street in 2006. In 2015, the Batemans transferred title to 39 Main Street to defendant/respondent South Dominion Ltd., S.A. (hereinafter South Dominion) — although they apparently retained control over the property. In 2019, petitioner took title to 41-45 and 47-49 West Main Street. 51 and 55 West Main Street are now owned by the Village of Cambridge (hereinafter the Village) and used as a community park. Petitioner alleges that — since 2004 — there have been ongoing issues with the septic system backing up because, inter alia, the grease trap servicing the Chinese Restaurant is not pumped regularly. According to petitioner, as a result of these issues sewage has risen to the surface several times over the years. After purchasing 41-45 and 47-49 West Main Street, petitioner attempted to work with the Association to address these issues but was largely unsuccessful. On September 22, 2020, Michele Anderson — petitioner’s owner — sent an email to Vance Bateman — then President of the Board of Directors — stating as follows: “[W]e do not wish to be part of this [A]ssociation in its current incarnation. There is nothing binding us personally or our property and we see no current benefit. We will be happy to pay 2/3 of the cost of pumping the tank that services our property and, when the time comes, we will certainly consider a fair contribution to replace the [absorption] field if we are still using it” [NYSCEF document No. 43, at p 1]. Petitioner thereafter retained an engineer to explore the possibility of disconnecting 41-45 and 47-49 West Main Street from the Association’s sewage system and establishing a separate system to service petitioner’s . It soon became apparent, however, that the establishment of a separate system was not feasible. On March 16, 2021, the DEC served the Association with a Notice of Violation relative to the absorption field. According to this Notice of Violation, the Association would incur a fine in the amount of $37,500.00 per day if repairs were not completed by April 2, 2021. Since that time, it appears the Association has submitted various reports and plans for replacement to the DEC. Petitioner has been involved to some extent, but its relationship with the Association has continued to devolve. On July 7, 2022, Vance Bateman signed an Amended Certificate of Incorporation on behalf of the Association, which modifies the provision relative to membership to read: “Every person or entity who is a record owner of a fee or undivided interest in any lot contained within the Property which is subject, by covenants of record, to assessment by the Association, including contract sellers, is eligible to be a member of the Association as defined within the Association’s By-Laws” [NYSCEF document No. 28, at 4 (emphasis added)]. This Amended Certificate of Incorporation was thereafter filed with the Department of State on March 2, 2023 along with a statement signed by Vance Bateman indicating that the amendment “was authorized by a vote of a majority of the entire [B]oard of [D]irectors[, as t]he corporation has no members” [NYSCEF document No. 48, at p 4]. Amended By-Laws were subsequently prepared as well, which provide as follows: “The owners of the following parcels are eligible to become Members of the Association: ADDRESS 1) 37-39 West Main Street, Cambridge, NY 2) 41-45 West Main Street, Cambridge, NY 3) 47-49 West Main Street, Cambridge, NY 4) 55-57 West Main Street, Cambridge, NY “The Board shall hold an election of prospective new Members to be held at a special meeting. If the prospective member fails to obtain 75 percent of the current Member Flow Votes to be accepted as a Member at the special meeting, the prospective Member becomes a customer of the Association and will possess none of the privileges of an Association Member. If a member at any time declines membership, then they become a customer” [NYSCEF document No. 25, at 4 (A)]. Insofar as these so-called “Member Flow Votes” are concerned, the Amended By-Laws further provide as follows: “A member/joint parcel owner who owns a parcel shall be entitled to one Flow vote/Gallons Per Day Flow Rate as estimated by James Hutchins’ septic system blue prints dated 26 Aug 1992, provided that member(s) of that parcel are current on all capital contributions, assessments and fees. The Flow Vote totals for each parcel are as follows: 1) 37-39 West Main Street, Cambridge, NY: 1250 Flow Votes 2) 41-45 West Main Street, Cambridge, NY: 450 Flow Votes 3) 47-49 West Main Street, Cambridge, NY: 450 Flow Votes 4) 55-57 West Main Street, Cambridge, NY: 270 Flow Votes “The votes of each Parcel shall not be divisible nor may the vote thereof he [sic] cast in part” [NYSCEF document No. 25, at 5 (h)]. Meanwhile, it appears that in April 2023 the Association submitted a report with a proposed replacement for the absorption field, with the DEC responding by correspondence dated May 24, 2023 that the proposed replacement was acceptable. The DEC further advised as follows: “To avoid referral of this matter to the Department’s Office of General Counsel for enforcement of the Notice of Violation, you must complete construction of the replacement system by December 31, 2023″ [NYSCEF document No. 5, at p 1]. According to petitioner, the Association accepted several bids for the work with Korb Land Improvement (hereinafter Korb) coming in the lowest — but the work has not yet begun because of a dispute relative to payment. Specifically, petitioner alleges that the Association is attempting to make it pay more than its fair share of the cost of the replacement. Petitioner has apparently placed some money in escrow in an attempt to resolve the dispute, but to no avail.4 The parties’ relationship has now deteriorated to the point that Vance Bateman allegedly tried to have Anderson arrested when she had the septic tank servicing her buildings pumped on November 1, 2023. According to petitioner, when the tank was pumped it was “filled to the top with solids” [NYSCEF document No. 3, at
