Opinion
8209 Index 154712/15
01-22-2019
Sharie GRAHAM, Plaintiff–Respondent, v. 420 EAST 72ND TENANTS CORP., et al., Defendants–Appellants.
Milber Makris Plousadis & Seiden, LLP, White Plains (Lorin A. Donnelly of counsel), for appellants. Kishner Miller Himes P.C., New York (Scott Himes of counsel), for respondent.
Milber Makris Plousadis & Seiden, LLP, White Plains (Lorin A. Donnelly of counsel), for appellants.
Kishner Miller Himes P.C., New York (Scott Himes of counsel), for respondent.
Sweeny, J.P., Tom, Kahn, Oing, Singh, JJ.
Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered on or about December 22, 2017, which denied defendants' motion for summary judgment dismissing the complaint, unanimously modified, on the law, to grant the motion as to the individual defendants, and otherwise affirmed, without costs. The Clerk is directed to enter judgment accordingly.
Plaintiff presented sufficient evidence to raise a triable issue of fact as to whether defendant cooperative board rejected the offers to purchase the subject unit in bad faith and for purposes of retaliation (see Pilipovic v. Laight Coop. Corp., 137 A.D.3d 710, 29 N.Y.S.3d 280 [1st Dept. 2016] ; Louis & Anne Abrons Found. v. 29 E. 64th St. Corp., 297 A.D.2d 258, 746 N.Y.S.2d 482 [1st Dept. 2002] ).
As the complaint does not allege individual wrongdoing by defendant board members separate and apart from their collective action taken on behalf of the cooperative, no breach of fiduciary duty claim lies against the individual defendants ( Hersh v. One Fifth Ave. Apt. Corp., 163 A.D.3d 500, 83 N.Y.S.3d 4 [1st Dept. 2018] ). Indeed, as the complaint does not specifically allege, and there is no record evidence of, any individual defendant's participation in the board's allegedly wrongful conduct or bad faith motive therefor, none of the claims can be sustained against any of the individual defendants (see Sayeh v. 66 Madison Ave. Apt. Corp., 73 A.D.3d 459, 901 N.Y.S.2d 26 [1st Dept. 2010] ).