Opinion
12730N Index No. 152644/15 Case No. 2020-01088
12-29-2020
James Bernard OLCOTT et al. Plaintiffs–Respondents, v. 308 OWNERS CORP., Defendant–Appellant.
Boyd Richards Parker & Colonnelli, P.L., New York (Gary S. Ehrlich of counsel), for appellant. Smith Buss & Jacobs LLP, Yonkers (John J. Malley of counsel), for respondents.
Boyd Richards Parker & Colonnelli, P.L., New York (Gary S. Ehrlich of counsel), for appellant.
Smith Buss & Jacobs LLP, Yonkers (John J. Malley of counsel), for respondents.
Webber, J.P., Mazzarelli, Gesmer, Moulton, Gonza´lez, JJ.
Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered July 25, 2019, which, inter alia, granted plaintiffs' motion for a preliminary injunction enjoining defendant from commencing a landlord-tenant proceeding to evict plaintiff James Bernard Olcott and his family from their apartment, from selling the shares of stock allocated to the apartment and owned by the estate of Bernard Olcott, and from issuing a new certificate of shares and new proprietary lease appurtenant to the apartment, unanimously affirmed, with costs.
The court providently exercised its discretion in granting plaintiffs' motion for a preliminary injunction as plaintiffs demonstrated a probability of success on the merits, a danger of irreparable injury in the absence of an injunction, and a balancing of the equities in their favor (see Aetna Ins. Co. v. Capasso, 75 N.Y.2d 860, 862, 552 N.Y.S.2d 918, 552 N.E.2d 166 [1990] ). The cooperative board's decision to deny the transfer application is subject to a heightened standard of reasonableness pursuant to paragraph 16(b) of the proprietary lease (see Estate of Del Terzo v. 33 Fifth Ave. Owners Corp., 136 A.D.3d 486, 488, 25 N.Y.S.3d 154 [1st Dept. 2016], affd 28 N.Y.3d 1114, 45 N.Y.S.3d 362, 68 N.E.3d 90 [2016] ). Plaintiff James Olcott had been the building's resident for over 25 years and was current on the maintenance charges. Regardless of whether his income was closer to the lower amount the cooperative claims or the higher amount that plaintiff claims, the lower income appears sufficient to demonstrate that he was able to pay maintenance charges, especially in view of his undisputed history of payment.