Opinion
2013-11-19
Bianca RAZZANO, Plaintiff–Appellant, v. WOODSTOCK OWNERS CORP., et al., Defendants–Respondents. New York Cooperatives & Condominiums, Amicus Curiae.
David L. Moss & Associates, New York (David L. Moss of counsel), for appellant. D'Amato & Lynch, LLP, New York (William P. Larsen, III of counsel), for respondents.
David L. Moss & Associates, New York (David L. Moss of counsel), for appellant. D'Amato & Lynch, LLP, New York (William P. Larsen, III of counsel), for respondents.
Gallet Dreyer & Berkey, LLP, New York (Marc J. Luxemburg of counsel), for amicus curiae.
MAZZARELLI, J.P., SAXE, MOSKOWITZ, DeGRASSE, JJ.
Order, Supreme Court, New York County (Paul Wootten, J.), entered October 16, 2012, which, to the extent appealed from as limited by the briefs and at oral argument, granted defendants' motion to dismiss the complaint pursuant to CPLR 3211(a)(1), and denied plaintiff's cross motion for summary judgment with respect to her claim that defendant Woodstock Owners Corp.'s (Woodstock) sublet policy violates Business Corporation Law § 501(c), unanimously reversed, on the law, without costs, the motion denied and the cross motion granted to the extent of declaring that Woodstock's sublet policy violates said statute.
In this dispute between plaintiff shareholder and defendant Woodstock, a cooperative corporation, the sublet policy at issue, which allows those who purchased their shares before October 2002 to sublet, while prohibiting those who purchased their shares after that date from subletting, violates the Business Corporation Law § 501(c) ( see e.g. Spiegel v. 1065 Park Ave. Corp., 305 A.D.2d 204, 205, 759 N.Y.S.2d 461 [1st Dept.2003]; Krakauer v. Stuyvesant Owners, 301 A.D.2d 450, 451, 753 N.Y.S.2d 367 [1st Dept.2003] ). Because the sublet policy violates the Business Corporation Law, it is not protected by the business judgment rule ( see White v. Gilbert, 2012 N.Y. Slip Op. 32042(U), *10, 2012 WL 3260300 [Sup. Ct., N.Y. County]; see also Fe Bland v. Two Trees Mgt. Co., 66 N.Y.2d 556, 565, 498 N.Y.S.2d 336, 489 N.E.2d 223 [1985]; Wirth v. Chambers–Greenwich Tenants Corp., 87 A.D.3d 470, 472, 928 N.Y.S.2d 288 [1st Dept.2011] ).
On appeal, plaintiff makes no argument with respect to her causes of action that are unrelated to Business Corporation Law § 501(c), such as fraud and negligent misrepresentation; hence, her appeal from the dismissal of those causes of action is deemed abandoned ( see e.g. Metropolitan Museum Historic Dist. Coalition v. De Montebello, 20 A.D.3d 28, 34, 796 N.Y.S.2d 64 [1st Dept.2005] ).
Motion to file amicus curiae brief granted.