| Aguilera del Puerto v Port Royal Owner's Corp. |
| 2008 NY Slip Op 07201 [54 AD3d 977] |
| September 30, 2008 |
| Appellate Division, Second Department |
| Lisa Aguilera del Puerto et al., Appellants, v Port RoyalOwner's Corp. et al., Respondents, et al., Defendant. |
—[*1] Winget, Spadafora & Schwartzberg, LLP, New York, N.Y. (Dianna D. McCarthy andMelissa L. Morais of counsel), for respondents Port Royal Owner's Corp., Kathleen Sagona,James P. Kelly, Eric Lehmann, Philip Micklaus, Alan J. Huber, Esther Ruiz, Paula Cappelluzzo,Ann del Guercio, and Wendy Burrell Mintzer. Abraham, Lerner & Arnold, LLP, New York, N.Y. (Johnathan C. Lerner of counsel), forrespondents Jack Olivero and Miriam Olivero.
In an action, inter alia, to recover damages for breach of fiduciary duty, the plaintiffs appealfrom an order of the Supreme Court, Kings County (Lewis, J.), entered January 9, 2007, whichdenied their motion for summary judgment on their second cause of action and granted therespective cross motions of the defendants, except the defendant Jean-Pierre Kerr, for summaryjudgment dismissing the complaint insofar as asserted against them.
Ordered that the order is affirmed, with one bill of costs to the respondents appearingseparately and filing separate briefs.
This action stems from the plaintiffs' failed attempt to purchase an additional unit in acooperative residential property located in Montauk. After their purchase application wasrejected, the plaintiffs commenced this action against, among others, the cooperative board andthe individual board members (hereinafter collectively the Board Defendants).[*2]
The Supreme Court correctly determined, as a matter oflaw, that the Board Defendants' decision to reject the plaintiffs' purchase application wasprotected by the business judgment rule (see 40 W. 67th St. v Pullman, 100 NY2d 147[2003]; Matter of Levandusky v One Fifth Ave. Apt. Corp., 75 NY2d 530 [1990]; Walden Woods Homeowners' Assn. vFriedman, 36 AD3d 691 [2007]; Captain's Walk Homeowners Assn. v Penney, 17 AD3d 617[2005]; Hochman v 35 Park W. Corp., 293 AD2d 650 [2002]). In opposition to the BoardDefendants' prima facie showing, the plaintiffs failed to raise a triable issue of fact by submittingevidence in admissible form that the Board Defendants "acted (1) outside the scope of [their]authority, (2) in a way that did not legitimately further the corporate purpose or (3) in bad faith"(40 W. 67th St. v Pullman, 100 NY2d at 155; see Walden Woods Homeowners' Assn.v Friedman, 36 AD3d at 692; Martino v Board of Mgrs. of Heron Pointe on Beach Condominium, 6AD3d 505 [2004]).
The plaintiffs' remaining contentions are without merit. Spolzino, J.P., Ritter, Santucci andCarni, JJ., concur. [See 14 Misc 3d 1214(A), 2007 NY Slip Op 50029(U).]