Opinion
February 23, 1998
Appeal from the Supreme Court, Queens County (LeVine, J.).
Ordered that the judgment is affirmed, with costs.
The Supreme Court properly determined that the provision in the defendant corporation's certificate of incorporation requiring a favorable vote of a majority of shares represented at the annual meeting to amend the by-laws was valid, and that the inconsistent provision in the by-laws was invalid ( see, Business Corporation Law § 601 [c]; § 616 [a] [2]; Model, Roland Co. v. Industrial Acoustics Co., 16 N.Y.2d 703, 705; Christal v. Petry, 275 App. Div. 550, affd 301 N.Y. 562).
Under the circumstances of this case, Zion v. Kurtz ( 50 N.Y.2d 92), does not apply because the plaintiff did not submit clear and unambiguous evidence that the corporation's shareholders intended the provision in the by-laws to control ( cf., Garson v. Garson, 105 A.D.2d 726, affd sub nom. Garson v. Rapping, 66 N.Y.2d 928).
Bracken, J. P., Santucci, Altman and McGinity, JJ., concur.