Spinale v. 10 West 66th Street Corp.

• Decision Date: 11 May 1993
• Citation: 597 N.Y.S.2d 345,193 A.D.2d 431
• Parties: Mary Ann SPINALE and Anthony Spinale, Plaintiffs-Appellants, v. 10 WEST 66TH STREET CORPORATION, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 345

597 N.Y.S.2d 345

193 A.D.2d 431

Mary Ann SPINALE and Anthony Spinale, Plaintiffs-Appellants, v. 10 WEST 66TH STREET CORPORATION, Defendant-Respondent.

Supreme Court, Appellate Division First Department.

May 11, 1993.

Before MILONAS, J.P., and ROSENBERGER, WALLACH and ROSS, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (William J. Davis, J.), entered February 20, 1992, which, inter alia, denied plaintiffs' motion for a preliminary injunction, and granted defendant's cross-motion for summary judgment dismissing the complaint and upon its counterclaim for attorneys' fees to the extent of directing an immediate trial on the issue of damages, unanimously modified, on the law, to the extent of dismissing defendant's counterclaim for attorneys' fees, and otherwise affirmed without costs. Order, same court and justice, entered April 28, 1992, which denied plaintiffs' motion to reargue and renew, unanimously affirmed without costs. Order and judgment, Supreme Court, New York County (Stuart Cohen, J.), entered September 15, 1992, awarding defendant $27,694.92 in attorneys' fees inclusive of interest and costs, unanimously reversed, on the law, and such award is vacated without costs.

In seeking a preliminary injunction prohibiting defendant cooperative corporation from installing submeters for electricity in its cooperative apartment building, plaintiff tenant-shareholder and her spouse failed to show the requisite likelihood of success, irreparable harm, or a balancing of the equities in their favor (DeLury v. City of New York, 48 A.D.2d 405, 370 N.Y.S.2d 600; Albini v. Solork Assocs., 37 A.D.2d 835, 326 N.Y.S.2d 150). Nor did plaintiffs raise any bona fide triable issues of fact in opposition to defendant's motion for summary judgment.

Plaintiffs contend that the amendment to the proprietary leases, adopted pursuant to Public Service Commission regulation, permitted the introduction of submetering, but still required a formal meeting of the shareholders to implement the amendment. That argument is unavailing, inasmuch as the applicable lease provision for amendments expressly provided, as the alternative to such a meeting, the written consent of at least two-thirds of the stockholders. (Here, over 75% of the shareholders had consented in writing.) The fact that this amendment became effective ten years ago does not render it inoperative by mere lapse of time, since every subsequently incoming shareholder took his tenancy...