Summary
dismissing conversion claim because the defendant acted pursuant to court order directing the sale of property
Summary of this case from Marks v. Energy Materials Corp.Opinion
March 28, 1996
Appeal from the Supreme Court, New York County (Emily Goodman, J.).
Plaintiff failed to state a cause of action for conversion against the cooperative, which participated in the sale of the shares allocated to the subject apartment pursuant to a court order directing it to do so. Plaintiff did not provide the cooperative with evidence of a valid transfer of the shares to it, since it had not complied with any of the cooperative's relevant bylaws or provisions of the proprietary lease. The cooperative was therefore acting within the business judgment rule in abiding by its governing documents ( see, Allen v Murray House Owners Corp., 174 A.D.2d 400, lv denied 78 N.Y.2d 860).
As to defendant Fein, there are questions whether he was in privity with another party in an action involving plaintiff and the identical property interests here contested, such that he would be collaterally estopped from asserting certain defenses. Those issues can only be resolved after further factual exploration, either by way of summary judgment or trial ( see, Green v Santa Fe Indus., 70 N.Y.2d 244, 255).
Concur — Milonas, J.P., Ellerin, Wallach, Nardelli and Mazzarelli, JJ.