Opinion
June 16, 2000.
Appeal from Judgment of Supreme Court, Erie County, Mintz, J. — CPLR art 78.
PRESENT: GREEN, J.P., HAYES, KEHOE AND LAWTON, JJ.
Judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court granted in part respondents' motion for summary judgment and dismissed the petition insofar as it sought to compel respondents to approve that part of the application of petitioner seeking permission to alter the exterior windows of his condominium unit. The court granted the petition insofar as it sought to compel respondents to approve that part of the application seeking permission to construct a sun-room on the roof of the building with elevator access from the condominium unit. The court should have granted respondents' motion in its entirety and dismissed the petition. Thus, we modify the judgment accordingly. Pursuant to section 6.08 of article VI of the Declaration of Condominium, petitioner waived his right to judicial review of respondents' denial of his application. It is well established that where, as here, a board "acts for the purposes of the [condominium], within the scope of its authority and in good faith, courts will not substitute their judgment for the board's. * * * [U]nless a resident challenging the board's action is able to demonstrate a breach of this duty, judicial review is not available" ( Matter of Levandusky v. One Fifth Ave. Apt. Corp., 75 N.Y.2d 530, 538). Petitioner failed to present evidence of bad faith, fraud, self-dealing or other misconduct ( see, Matter of Vacca v. Board of Mgrs. of Primrose Lane Condominium, 251 A.D.2d 674, 675). Rather, the record establishes that respondents were acting in good faith for the purposes of the condominium and that their actions were within the scope of their authority ( see, Cooper v. Greenbriar Owners Corp., 239 A.D.2d 311, 311-312; Board of Mgrs. of Greens Condominium v. Feldman, 190 A.D.2d 650, 651, lv denied 81 N.Y.2d 710).