Opinion
16554-, 16554A Index No. 152490/21 Case Nos. 2022-00686, 2022-01685
10-27-2022
Pablo RIVERA, Plaintiff–Respondent, v. 98–100 AVENUE C HOUSING DEVELOPMENT FUND CORPORATION, Defendant–Appellant.
Andrea Shapiro, PLLC, New York (Andrea Shapiro of counsel), for appellant. Canzoneri & Canzoneri, LLP, Malverne (Patricia M. Canzoneri of counsel), for respondent.
Andrea Shapiro, PLLC, New York (Andrea Shapiro of counsel), for appellant.
Canzoneri & Canzoneri, LLP, Malverne (Patricia M. Canzoneri of counsel), for respondent.
Kapnick, J.P., Mazzarelli, Friedman, Shulman, Rodriguez, JJ.
Order, Supreme Court, New York County (Paul A. Goetz, J.), entered August 30, 2021, which, to the extent appealed from as limited by the briefs, denied defendant's cross motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the cross motion granted, and it is declared that there was no valid inter vivos gift of the shares and proprietary lease for the apartment to plaintiff. Order, same court and Justice, entered January 14, 2022, which denied plaintiff's motion for summary judgment, unanimously dismissed, without costs, as academic. The Clerk is directed to enter judgment accordingly.
According to plaintiff, his deceased brother, who was the sole proprietary lessee of a cooperative apartment in the defendant 98–100 Avenue C Housing Development Fund Corporation (HDFC), made an inter vivos gift of the apartment to plaintiff. Defendant established that there was no valid inter vivos gift to plaintiff of the shares and proprietary lease for the apartment, as the statute of frauds applies to the sale of stock in a housing cooperative and there was no writing to effect the transfer (see Rosner v. 80 CPW Apartments Corp., 73 A.D.2d 39, 41, 424 N.Y.S.2d 723 [1st Dept. 1980] ). Plaintiff's assertion that a writing was not required because he already possessed the share certificate and proprietary lease and the transfer was therefore a "completed gift" is unavailing, because he has not identified any applicable exception to the statute of frauds ( General Obligations Law § 5–703[2] ; Pollard v. Meyer, 61 A.D.2d 766, 767, 402 N.Y.S.2d 15 [1st Dept. 1978] ).
Plaintiff's claim further fails as a matter of law, as the decedent – his brother – failed to follow the transfer provisions of the proprietary lease, which required, among other things, a written assignment of shares signed by the shareholder and the approval of defendant's board of directors to make a valid transfer of the shares to the apartment within the decedent's lifetime (see LI Equity Network, LLC v. Village in the Woods Owners Corp., 79 A.D.3d 26, 28, 910 N.Y.S.2d 97 [2d Dept. 2010] ).
Moreover, even if the decedent had not been required to abide by the terms of the proprietary lease to make a valid inter vivos gift of the apartment, the lack of a writing also militates against establishing the decedent's donative intent, which is a necessary element of a valid inter vivos gift (see Gruen v. Gruen, 68 N.Y.2d 48, 53, 505 N.Y.S.2d 849, 496 N.E.2d 869 [1986] ). Not only does the decedent's failure to follow the procedures in the proprietary lease contradict any donative intent, but plaintiff also acknowledges that the delivery of the share certificate and proprietary lease were not made by the decedent himself, and the conflicting affidavits of the decedent's girlfriend fail to establish that she was acting as decedent's agent for that purpose. In any event, with respect to symbolic delivery of a share certificate, such a delivery becomes effective only when there is a transfer or record on the stock books of the company, since before that time, the donor can change his mind and direct his agent not to effect the transfer ( In re Szabo's Estate, 10 N.Y.2d 94, 98, 217 N.Y.S.2d 593, 176 N.E.2d 395 [1961] ). We have considered the remaining contentions and find them unavailing.