Michaelson v. 20 Sutton Place S.
| Docket Number | Index No. 654155/2020,Motion Seq. No. 001 |
| Decision Date | 16 November 2023 |
| Parties | CRAIG MICHAELSON, as Executor of the Estate of WARREN DAVIS, Plaintiff, v. 20 SUTTON PLACE SOUTH, INC., Defendant. |
| Court | New York Supreme Court |
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 001) 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 21,22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35 36, 37, 38, 39, 40, 41,42, 43, 44, 45, 46, 47, 48, 49, 50, 51,52, 53, 54, 55, 56, 60, 71 were read on this motion to/for SUMMARY JUDGMENT (AFTER JOINDER)
Upon the foregoing documents, it is
ORDERED that, only to the extent that it seeks dismissal of the remedy of a declaratory judgment (i.e., the remedy of specific performance in breach of contract), the motion of defendant for summary judgment is dismissed, as moot, as plaintiff has, on consent, discontinued seeking such remedy of specific performance; and it is further
ORDERED that, with respect to the remaining causes of action that seek damages in breach of contract and breach of the implied covenant of good faith and fair dealing, the motion of defendant for summary judgment dismissing the complaint is granted, and the complaint is dismissed with costs and disbursements to defendant as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further ORDERED that the Clerk is directed to enter judgment accordingly.
Defendant is correct that "an action taken at the meeting of [the board of directors] may be proved (sic) [, in lieu of minutes,] in the same way as acts of any private individual." Matter of Teperman v Atcos Bath, 7 A.D.2d 854, 855 (2d Dept 1959). Here, defendant has come forward with the affidavits of its board's president, as well as one of the other board members, who served on its Transfer Review Committee, which constitute admissible evidence establishing (1) the formation of the Transfer Review Committee, formerly known as the Finance Committee (2) the board's actions disapproving Purchaser Number 1 at its November 26, 2019 meeting; and (3) its Transfer Review Committee's action on or about March 18, 2020, denying the application of Purchaser Number 2.
Article II, paragraph 4 of the proprietary lease provides:
A written consent to such as assignment, authorized by a resolution of the Board of Directors, or signed by a majority of the directors, or by lessees owning of record at least a majority of the capital stock of the Lessor accompanying proprietary leases then in force, must be delivered to the Lessor. In the event the Lessee should die during the term of this lease, then the Board of Directors or the other lessees owning capital stock of the Lessor shall not unreasonably withhold the consent provided for in this paragraph to any assignment or transfer of the stock and the lease which the Lessee may make in his or her last will and testament, or through the acts of his or her administrator or executor, to a financially responsible member of the Lessee's immediate family; provided, however, that the other conditions of this paragraph are complied with.
The action before the court does not involve the disposition of shares under the last will and testament of plaintiff's decedent but instead concerns the two proposed assignments of his proprietary lease and sale of shares to prospective purchasers, prior to his death, which were each disapproved by the board members. No reasonable consent is required with respect to such sales.
Judicial review of the acts of any board of directors of a corporate entity is limited by the business judgment rule.
Under the...
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