| Oakwood On The Sound, Inc. v David |
| 2009 NY Slip Op 05097 [63 AD3d 893] |
| June 16, 2009 |
| Appellate Division, Second Department |
| Oakwood On The Sound, Inc., Appellant, v Russell Davidet al., Respondents. |
—[*1] Gia C. McArdle, Garden City, N.Y. (Maryellen David of counsel), for respondents.
In an action, inter alia, to recover unpaid common charges assessed by a cooperative housingcorporation, the plaintiff appeals, as limited by its brief, from stated portions of a judgment of theSupreme Court, Suffolk County (Weber, J.), entered August 29, 2007, which, upon an order ofthe same court dated July 3, 2007, granting that branch of the defendants' motion which was, ineffect, for summary judgment on the counterclaim to the extent of directing the plaintiff toremove soil that it caused to be placed and shrubbery that it caused to be planted on the parkingarea used by the defendants and denying that branch of its cross motion which was for summaryjudgment dismissing the counterclaim, inter alia, is in favor of the defendants and against it,directing it to remove the soil that it caused to be placed and shrubbery that it caused to beplanted on the parking area used by the defendants.
Ordered that the judgment is reversed insofar as appealed from, on the law, with costs, thatbranch of the defendants' motion which was, in effect, for summary judgment on thecounterclaim is denied, that branch of the plaintiff's cross motion which was for summaryjudgment dismissing the counterclaim is granted, and the order dated July 3, 2007, is modifiedaccordingly.
In 2001 the board of directors of the plaintiff Oakwood On The Sound, Inc. (hereinafterOakwood), a cooperative corporation consisting, inter alia, of 101 cabins and appurtenantparking spaces, received a complaint from a shareholder that the defendants were parking twovehicles end to end in one parking space, causing one of the vehicles to encroach onto an areacovered by his proprietary lease. In June 2002 Oakwood issued a determination "preclud[ing]"the defendants and others from parking more than one vehicle at a time in their allotted spaces.Subsequently, Oakwood hired a landscaper to place fill and shrubbery at the head of the space,creating an earthen berm which limited the parking in the subject space to a single vehicle.
In 2005 Oakwood commenced this action to recover unpaid common charges, which thedefendants refused to pay due to the alleged deprivation of their right to use their parking spacein the manner they desired. The defendants counterclaimed, inter alia, seeking a judgmentdeclaring that they[*2]"have exclusive use and control of, andaccess to, the area designated for parking" for their cabin, and directing Oakwood to remove thelarge quantity of soil it caused to be placed and shrubbery it caused to be planted. The SupremeCourt, inter alia, entered a judgment, among other things, directing Oakwood to remove the soiland shrubbery. We reverse.
A doctrine analogous to the business judgment rule prohibits judicial inquiry into decisionsmade by cooperative governing boards which are "taken in good faith and in the exercise ofhonest judgment in the lawful and legitimate furtherance of corporate purposes" (Matter ofLevandusky v One Fifth Ave. Apt. Corp., 75 NY2d 530, 537-538 [1990] [internal quotationmarks omitted]; see Levine v Greene, 57 AD3d 627, 628 [2008]; Hochman v 35 ParkW. Corp., 293 AD2d 650, 651 [2002]). Here, Oakwood made a prima facie showing that itsparking determination, including its installation of a berm, was within its authority, made ingood faith, and in furtherance of the cooperative's legitimate interests. In opposition, thedefendants failed to raise a triable issue of fact (see Martino v Board of Mgrs. of HeronPointe on Beach Condominium, 6 AD3d 505, 506 [2004]; Gillman v Pebble Cove HomeOwners Assn., 154 AD2d 508, 509 [1989]). Accordingly, the Supreme Court should havegranted that branch of Oakwood's cross motion which was for summary judgment dismissing thecounterclaim.
Oakwood's remaining contentions are not properly before us. Fisher, J.P., Dillon, Covelloand Dickerson, JJ., concur.