| King v 870 Riverside Dr. Hous. Dev. Fund Corp. |
| 2010 NY Slip Op 04861 [74 AD3d 494] |
| June 8, 2010 |
| Appellate Division, First Department |
| Margaret E. King, Respondent, v 870 Riverside DriveHousing Development Fund Corp. et al., Appellants. |
—[*1] Marc E. Scollar, Staten Island, for respondent.
Order, Supreme Court, New York County (Paul G. Feinman, J.), entered September 10,2009, which, to the extent appealed from, denied defendants' motion to dismiss the first, fourth,fifth and sixth causes of action, unanimously modified, on the law, the motion granted to dismissthe fourth, fifth and sixth causes of action as against defendant Board of Directors and theindividual defendants, and otherwise affirmed, without costs.
Plaintiff and her father acquired shares in the subject cooperative corporation, and enteredinto a proprietary lease with it in 1985. After her father's death, plaintiff sought to have hisinterests transferred to her. The proprietary lease provides that transfer of shares and assignmentof the lease cannot take effect until authorized by the directors, either by resolution or by writtenconsent of a majority, and that in the event of the death of a lessee shareholder, such "consentshall not be unreasonably withheld." Plaintiff alleges that after initially consenting to therequested transfer, the board and its members, acting inexplicably and without any stated reason,withheld their consent and refused to execute the documents necessary to complete the transferand assignment.
The first cause of action, which seeks to compel the board and its individual members toexecute the necessary documents, thus states a valid cause of action for injunctive relief againstall the defendants (see Schwartz v Marien, 37 NY2d 487 [1975]). However, the fourthand sixth causes of action, to the extent they allege breach of the provisions of the proprietarylease that obligate the coop to maintain the apartment in good repair, are inadequate as to theboard and the individual defendants because the board is not a party to the lease, and there are noallegations of tortious or wrongful conduct on the part of the individual board members thatwould render them personally liable (see Konrad v 136 E. 64th St. Corp., 246 AD2d 324[1998]).
The complaint adequately pleads a cause of action against the coop alone for constructiveeviction based on leaks causing extensive water damage to the apartment, as a result of whichplaintiff could not use or sublet the apartment (see Dinicu v Groff Studios Corp., 257AD2d 218, 224 [1999]; Oresky v Azzoni, 232 AD2d 463 [1996]). The evidencesubmitted by defendants does not eliminate all issues (see Guggenheimer v Ginzburg, 43NY2d 268, 275 [1977]), or so flatly [*2]contradict the allegationsof the complaint as to warrant dismissal in toto (see Beattie v Brown & Wood, 243AD2d 395 [1997]). Plaintiff's claim for damages arising from the coop's alleged failure, inviolation of the proprietary lease, to repair the continuing leaks is not time-barred, but recoveryof monetary damages is limited by CPLR 214 (4) to any alleged damage that occurred withinthree years of the commencement of the instant action (see Kaymakcian v Board of Mgrs. of Charles House Condominium, 49AD3d 407 [2008]). The evidence submitted by defendants does not establish that noproperty damage occurred within that three-year period. Concur—Mazzarelli, J.P., Saxe,Nardelli, DeGrasse and Manzanet-Daniels, JJ. [Prior Case History: 2009 NY Slip Op32049(U).]