| Parker v Marglin |
| 2008 NY Slip Op 09266 [56 AD3d 374] |
| November 25, 2008 |
| Appellate Division, First Department |
| Samuel Parker et al., Appellants, v Paula Marglin et al.,Respondents. |
—[*1] Mary Parker, appellant pro se. Ahmuty, Demers & McManus, New York (Deborah Del Sordo of counsel), forrespondents.
Order, Supreme Court, New York County (Leland DeGrasse, J.), entered December 5, 2007,which, in an action by tenants/shareholders against a cooperative board and its officers/directorsfor breach of fiduciary duty, breach of the covenant of quiet enjoyment, and concealment ofcorporate records and other documents, denied plaintiffs' motion for a preliminary injunction andgranted defendants' cross motion to dismiss the complaint, unanimously affirmed, with costs.Appeal from order, same court and Justice, entered March 21, 2008, which denied plaintiff'smotion to reargue, unanimously dismissed, without costs, as taken from a nonappealable paper.
Plaintiffs disagree with the board's decisions as to the costs, means, allocation and methodsemployed in making repairs to the building, but fail to adduce evidence of self-dealing, fraud, orother acts constituting a breach of fiduciary duty sufficient to overcome the business judgmentrule (see Matter of Levandusky v One Fifth Ave. Apt. Corp., 75 NY2d 530, 538 [1990];Konrad v 136 E. 64th St. Corp., 254 AD2d 110 [1998], lv denied and dismissed92 NY2d 1042 [1999]). Plaintiffs waived their claim for breach of the covenant of quietenjoyment by refusing to pay assessments for major structural repairs (see Dave Herstein Co.v Columbia Pictures Corp., 4 NY2d 117 [1958]). Moreover, the proprietary lease gives thecooperative an easement for the purpose of making repairs (cf. Jackson v Westminster House Owners Inc., 24 AD3d 249[2005], lv denied 7 NY3d 704 [2006]). The record also establishes that the boardsupplied the records and documents requested by plaintiffs. In any event, plaintiffs fail to showhow the [*2]alleged concealment caused them the moneydamages they seek to recover. No appeal lies from denial of a motion for reargument (Trexler v Kahanovitz, 41 AD3d161, 162 [2007]). Concur—Lippman, P.J., Gonzalez, Moskowitz, Acosta andRenwick, JJ.