The following e-filed documents, listed by NYSCEF document number (Motion 002) 71, 72, 73, 74, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 100 were read on this motion to DISMISS. The following e-filed documents, listed by NYSCEF document number (Motion 004) 101, 102, 103, 104, 105, 106, 107, 108, 114, 115, 116, 117, 118, 119, 120 were read on this motion to EXTEND TIME. The following e-filed documents, listed by NYSCEF document number (Motion 005) 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 143, 145 were read on this motion to AMEND CAPTION/PLEADINGS. DECISION + ORDER ON MOTION In December 2023, plaintiff, Board of Managers of the Promenade Condominium, sued to impose a lien on condominium units owned by defendants Robin Eshaghpour, Elena Eshaghpour, and East River Condo, LLC. Defendants allegedly breached a settlement obligation to pay unpaid common charges. In March 2024, defendants answered the complaint1 and raised counterclaims against the board, Duncan McCuaig, Nancy McCuaig, Thomas West, Jean- Christophe Le Picart, Robert Jackman, Arthur J. Mirante II, AKAM Associates, Inc., Alexis Kaminoff-Fritz, Mulligan Security LLC, and Hector Espana. On motion sequence 002, the board, board members Duncan McCuaig, Nancy McCuaig, Thomas West, Jean-Christophe Le Picart, Arthur J. Mirante II, Robert Jackman, AKAM Associates, Inc., and Alexis Kaminoff-Fritz (movants) moved in April 2024 to dismiss defendants’ counterclaims. In May 2024, defendants filed an amended answer with counterclaims. Movants have asked that their motion to dismiss be directed to the counterclaims as alleged in the amended answer. (See NYSCEF No. 92.) The motion is granted in part and denied in part. On motion sequence 004, defendants move under CPLR 2004 for an additional 30 days to oppose movants’s motion to dismiss.2 (NYSCEF No. 101 [notice of motion].) Defendants’ motion is denied. On motion sequence 005, defendants move for leave to file a second amended answer to raise a counterclaim against a nonparty. Defendants’ motion is denied. DISCUSSION I. Extension of Time to File Opposition (Mot Seq 004) As a preliminary matter, the court concludes that defendants are not entitled to an extension of time to oppose the motion to dismiss their counterclaims. Defendants chose to file an amended answer with counterclaims without filing opposition papers. The court agrees with movants that in these circumstances, defendants essentially seek to file a sur-reply, which is improper under 22 NYCRR 202.8-c. The court will apply movants’ motion to defendants’ amended answer with counterclaims and decide the motion accordingly. (See Sage Realty Corp. v. Proskauer Rose LLP, 251 AD2d 35, 38 [1st Dept 1998] ["[T]he moving party has the option to decide whether its motion should be applied to the new pleadings.”].) II. Breach of Fiduciary Duty (First Counterclaim) (Mot Seq 002) Defendants allege that the board, McCuaig (current board president), West (board treasurer), Le Picart (board member), and Mirante (board member and previous president) owe a fiduciary duty to act in defendants’ best interests and that they violated those duties. (NYSCEF No. 29 at
