Opinion
898 File No. 4582/05 Case No. 2023–00272
10-24-2023
In the MATTER OF David A. SCHULTE, Jr., Deceased. Sandra Schulte, as Limited Administrator CTA of the Estate of David A. Schulte, Jr., Cross-Claimant–Appellant, v. 1125 Park Avenue Corporation, Respondent–Respondent.
Dilworth Paxson LLP, New York (Ira N. Glauber of counsel), for appellant. Braverman Greenspun P.C., New York (Tracey Peterson of counsel), for respondent.
Dilworth Paxson LLP, New York (Ira N. Glauber of counsel), for appellant.
Braverman Greenspun P.C., New York (Tracey Peterson of counsel), for respondent.
Kern, J.P., Singh, Gesmer, Scarpulla, JJ.
Order, Surrogate's Court, New York County (Rita Mella, S.), entered November 23, 2022, which denied cross-claimant's motion for leave to further amend the cross-claim and granted respondent's motion for summary judgment dismissing the cross-claim, unanimously affirmed, without costs.
Surrogate's Court providently exercised its discretion (see e.g., Oil Heat Inst. of Long Is. Ins. Trust v. RMTS Assoc., 4 A.D.3d 290, 293, 772 N.Y.S.2d 313 [1st Dept. 2004] ) by denying the motion to further amend the cross-claim. "Where there has been an extended delay in moving to amend, the party seeking leave to amend must establish a reasonable excuse for the delay" ( id. [internal quotation marks omitted]). The original cross-claim was interposed by decedent David A. Schulte's executor in or about 2013. In November 2017, the court granted cross-claimant's request for limited letters of administration and substituted her as executor. Cross-claimant did not move to amend the cross-claim until January 2021—nearly eight years after the proceeding was commenced—and after the close of discovery and after respondent had moved for summary judgment. Even if one accepts that cross-claimant (who was also the petitioner) gave respondent notice of the substance of the amendment to the cross-claim in her August 2020 motion for leave to file a second amended petition there was still an extended delay. Although cross-claimant proffered excuses, we agree with Surrogate's Court that they were not reasonable.
Based on cross-claimant's allegations, the court must evaluate the co-operative board's conduct under the business judgement rule. Cross-claimant failed to raise triable issues as to whether respondent acted "in a way that did not legitimately further the corporate purpose or ... in bad faith," which would be necessary to trigger further judicial scrutiny ( 40 W. 67th St. Corp. v. Pullman, 100 N.Y.2d 147, 155, 760 N.Y.S.2d 745, 790 N.E.2d 1174 [2003] ). Further, cross-claimant does not allege discriminatory conduct and absent discrimination based on "race, color, religion, national original or ancestry." Co-operative boards, such as respondent's, can "decide for themselves with whom they wish to share their elevators, their common halls and facilities, their stockholders’ meetings, their management problems and responsibilities and their homes" ( Weisner v. 791 Park Ave. Corp., 6 N.Y.2d 426, 434, 190 N.Y.S.2d 70, 160 N.E.2d 720 [1959]; see also e.g. 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] ).