| Levine v Greene |
| 2008 NY Slip Op 09760 [57 AD3d 627] |
| December 9, 2008 |
| Appellate Division, Second Department |
| mMartin Levine, Appellant, v Richard J. Greene et al.,Respondents. |
—[*1] Braverman & Associates, P.C., New York, N.Y. (Andreas E. Theodosiou and Scott S.Greenspun of counsel), for respondents.
In an action, inter alia, for a judgment declaring that the 2006 budget passed by the Board ofDirectors of the defendant Harbor View at Port Washington Home Owners Association, Inc., isinvalid, the plaintiff appeals (1) from an order of the Supreme Court, Nassau County (Murphy, J.),entered July 13, 2007, which granted the defendants' motion for summary judgment dismissing thecomplaint, and (2), as limited by his brief, from so much of an order of the same court dated December19, 2007, as, upon renewal and reargument, adhered to so much of the original determination asgranted those branches of the defendants' motion which were for summary judgment dismissing the first,second, third, and fourth causes of action, and (3) from so much of an order of the same court enteredFebruary 27, 2008, as, in effect, upon reconsideration of the motion for leave to renew and reargue,and the vacating of the order dated December 19, 2007, adhered to the original determination in theorder entered July 13, 2007, granting the defendants' motion for summary judgment dismissing thecomplaint.
Ordered that the appeal from the order dated December 19, 2007, is dismissed as academic, asthat order was vacated by the order entered February 27, 2008; and it is further,[*2]
Ordered that the appeal from the order entered July 13, 2007,is dismissed, as that order was superseded by the order entered February 27, 2008, in effect, uponreconsideration of the motion for leave to renew and reargue; and it is further,
Ordered that the order entered February 27, 2008, is affirmed insofar as appealed from, and thematter is remitted to the Supreme Court, Nassau County, for entry of a judgment declaring that the2006 budget passed by the Board of Directors of the defendant Harbor View At Port WashingtonHome Owners Association, Inc., is valid; and it is further,
Ordered that one bill of costs is awarded to the defendants.
The plaintiff is the president of the Board of Managers of Harbor View at Port WashingtonCondominium (hereinafter the Condominium). The apartment owners within the Condominium are classB members of the defendant Harbor View at Port Washington Home Owners Association, Inc.(hereinafter the Association). The plaintiff commenced this action, inter alia, for a judgment declaringthat the 2006 budget passed by the Association's board of directors (hereinafter the Board) is invalid.The Association owns all of the common elements within the Harbor View community. The defendants,consisting of the Association and the member of the Board who voted in favor of the budget, moved forsummary judgment dismissing the complaint. The Supreme Court granted the motion. Upon renewaland reargument, the Supreme Court adhered to its original determination.
In reviewing the reasonableness of the Association's exercise of its authority, "absent claims offraud, self-dealing, unconscionability, or other misconduct, the court should apply the business judgmentrule and should limit its inquiry to whether the action was authorized and whether it was taken in goodfaith and in furtherance of the legitimate interests of the corporation" (Gillman v Pebble Cove HomeOwners Assn., 154 AD2d 508, 508-509 [1989] [internal quotation marks omitted]; seeMatter of Levandusky v One Fifth Ave. Apt. Corp., 75 NY2d 530 [1990]; Captain's Walk Homeowners Assn. v Penney,17 AD3d 617, 618 [2005]). In support of their motion for summary judgment, the defendantsmade a prima facie showing that the Board's adoption of the 2006 budget was authorized, made ingood faith, and in furtherance of the Association's legitimate interests (see 40 W. 67th St. vPullman, 100 NY2d 147 [2003]; Matter of Levandusky v One Fifth Ave. Apt. Corp., 75NY2d 530 [1990]; Captain's Walk Homeowners Assn. v Penney, 17 AD3d at 618; LoRusso v Brookside Homeowner's Assn., Inc.,17 AD3d 323 [2005]; Schoninger v Yardarm Beach Homeowners' Assn., 134AD2d 1, 10 [1987]). In opposition, the plaintiff failed to raise a triable issue of fact regarding thereasonableness of the Board's exercise of authority, or his claims of fraud, self-dealing, or othermisconduct by the individual defendants which would trigger further judicial inquiry (see 40 W. 67thSt. v Pullman, 100 NY2d 147 [2003]; Walden Woods Homeowners' Assn. v Friedman, 36 AD3d 691 [2007];Martino v Board of Mgrs. of Heron Pointe onBeach Condominium, 6 AD3d 505 [2004]). Accordingly, summary judgment was properlygranted to the defendants. Moreover, upon renewal and reargument, the Supreme Court properlyadhered to its original determination.
Since this is, in part, a declaratory judgment action, the matter must be remitted to the SupremeCourt, Nassau County, for the entry of a judgment declaring that the 2006 budget passed by the Boardis valid (see Lanza v Wagner, 11 NY2d 317, 334 [1962], appeal dismissed 371 US74 [1962], cert denied 371 US 901 [1962]). Fisher, J.P., Angiolillo, Dickerson and Belen, JJ.,concur.