Summary
In Rosenberg v. Riverwood Owners, Inc., 304 AD2d 547, 756 NYS2d 900 (2nd Dept 2003), the court upheld the Board's refusal to approve the sublet.
Summary of this case from First Buckingham Owners Corp. v. TamburoOpinion
2002-04108.
Argued March 3, 2003.
April 7, 2003.
In an action, inter alia, to recover damages for breach of a propriety lease for a cooperative apartment, the plaintiff appeals from an order of the Supreme Court, Westchester County (Barone, J.) entered March 14, 2002, which, upon the plaintiff's default in opposing the defendants' motion for summary judgment dismissing the complaint, an order of the same court, dated February 4, 2002, the parties stipulation that the plaintiff could submit opposition to the motion, and the court's consideration of the plaintiff's opposition papers, in effect, adhered to the order dated February 4, 2002, and granted the defendants' motion for summary judgment dismissing the complaint.
Leonard Buddington, Jr., Yonkers, N.Y., for appellant.
Harms, Mahon, Finneran, Gialleonardo Whelan, Elmsford, N.Y. (Michael J. Mahon of counsel), for respondents.
Before: A. GAIL PRUDENTI, P.J., NANCY E. SMITH, LEO F. McGINITY. BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
After purchasing her cooperative apartment in Yonkers in March 1986 and subletting it to various tenants, the plaintiff attempted to sublet her apartment in October 1995 and July 1997. The proprietary lease allows subletting upon consent of the cooperative's Board of Directors (hereinafter the Board), which "shall not be unreasonably withheld." After reviewing the financial information and related documentation within the respective applications, the Board denied the plaintiff's requests.
The plaintiff commenced this action against the cooperative and members of the Board and the cooperative's managing agent at the time of the denials to recover damages for breach of the proprietary lease and breach of the Board's fiduciary duty to her as a shareholder. The defendants thereafter moved for summary judgment dismissing the complaint. The Supreme Court initially granted the motion upon the plaintiff's default in opposing the motion, by order dated February 4, 2002, and thereafter, pursuant to stipulation, permitted the plaintiff to oppose the motion. The order appealed from, in effect, adhered to the original order, and granted the defendants' motion for summary judgment dismissing the complaint.
The Supreme Court properly concluded that no question of fact exists with respect to the Board's refusal to approve the plaintiff's proposed sublease (see Chambers v. 15 Beach Owners, 221 A.D.2d 400; cf. Minoff v. Irvington Estates Owners, 232 A.D.2d 616). Its determination was made after due consideration of each applicant's submission (cf. Ludwig v. 25 Plaza Tenants Corp., 184 A.D.2d 623). Its withholding of consent had a legitimate relationship to the welfare of the cooperative and was therefore reasonable (see Matter of Levandusky v. One Fifth Ave. Apt. Corp., 75 N.Y.2d 530).
Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment.
PRUDENTI, P.J., SMITH, McGINITY and COZIER, JJ., concur.