Opinion
May 21, 1998
Appeal from the Supreme Court, New York County (Barbara Kapnick, J.)
The action was properly dismissed in the absence of any dispute that plaintiff had not complied with the terms of sale relating to his application for and approval by defendants Board as a purchaser of the apartment. Plaintiff is not a shareholder of defendant and it owed him no fiduciary duty ( compare, Ackerman v. 305 E. 40th Owners Corp., 189 A.D.2d 665). He freely participated in the auction fully aware of the ban against investor purchasers, and now, by seeking to eliminate that ban as "commercially unreasonable", would inequitably secure for himself an advantage over the other bidders. Assuming, arguendo, that the Boards consideration of plaintiffs assignees application for approval constituted a waiver of plaintiffs default, no facts are alleged that would warrant judicial interference with the Boards rejection of that application ( see, Matter of Levandusky v. One Fifth Ave. Apt. Corp., 75 N.Y.2d 530, 538). Moreover, if the assignment were valid, as plaintiff argues, plaintiff would no longer be the party in interest and would have no standing to bring this action. We have considered plaintiffs other arguments and find them to be without merit.
Concur — Sullivan, J.P., Ellerin, Williams, Mazzarelli and Andrias, JJ.