GPS Global Parking Solutions, LLC v 151 W. 17th St. Condominium

GPS Global Parking Solutions, LLC v 151 W. 17th St. Condominium 2012 NY Slip Op 01748 Decided on March 8, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 8, 2012
Tom, J.P., Andrias, Catterson, Moskowitz, Román, JJ.
7044 107944/10

[*1]GPS Global Parking Solutions, LLC, Plaintiff-Respondent,

v

151 West 17th Street Condominium, Defendant, Board of Directors of 151 West 17th Street Condominium, et al., Defendants-Appellants.




White, Fleischner & Fino, LLP, New York (Evan A. Richman
of counsel), for appellants.
Goldberg Weprin Finkel Goldstein LLP, New York (Matthew
Hearle of counsel), for respondent.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered July 18, 2011, which denied the motion of defendant Board of Directors and its individual members to dismiss the complaint as against them, unanimously affirmed, without costs.

We accept the allegations of the complaint as true and construe the inferences that may be drawn therefrom in plaintiff's favor, as we must on a motion to dismiss pursuant to CPLR 3211 (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; DeMicco Brothers, Inc. v Consolidated Edison Co. of N.Y., Inc., 8 AD3d 99 [2004]). We find that the complaint sufficiently states a claim against the Condominium Board and its individual members for trespass and misappropriation of property. In the complaint, plaintiff asserts that defendants directed employees of the condominium to continue to trespass on plaintiff's personal property and disrupt its business in bad faith and in furtherance of their personal "grudge" against plaintiff or its principal. This allegation of bad faith and a breach of fiduciary duty, not protected by the business judgment [*2]rule, is sufficient to withstand the motion to dismiss (see Matter of Y & O Holdings (NY) v Board of Mgrs. of Exec. Plaza Condominium, 278 AD2d 173 [2000]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 8, 2012

CLERK