13th & 14th St. Realty LLC v Board of Mgrs. of the A Bldg. Condominium

13th & 14th St. Realty LLC v Board of Mgrs. of the A Bldg. Condominium 2015 NY Slip Op 07757 Decided on October 22, 2015 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 October 22, 2015
Sweeny, J.P., Renwick, Saxe, Gische, JJ.
15942 155269/13

[*1] 13th & 14th Street Realty LLC, Plaintiff-Appellant,

v

The Board of Managers of the A Building Condominium, Defendant-Respondent.

Goldberg Weprin Finkel Goldstein, New York (Matthew Hearle of counsel), for appellant.

Cozen O'Connor, New York (Edward Hayum of counsel), for respondent.

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered June 2, 2014, which, among other things, denied plaintiff's motion for summary judgment in lieu of complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

In opposition to plaintiff's prima facie showing of its entitlement to judgment as a matter of law, defendant failed to raise a triable issue of fact (Zyskind v FaceCake Mktg. Tech., Inc., 101 AD3d 550, 551 [1st Dept 2012]). We agree with plaintiff's argument that defendant, by making 60 monthly interest payments under a note, even after it was aware of plaintiff's alleged wrongdoing, ratified the note and waived any defenses of fraud, self-dealing or breach of fiduciary duty (see Scharf v Idaho Farmers Mkt. Inc., 115 AD3d 500, 501-502 [1st Dept 2014]; see also Davis & Davis v Morson, 286 AD2d 584, 585 [1st Dept 2001]). We may consider plaintiff's argument, which was raised during oral argument on the motion but was excluded from the parties' briefs to the motion court, because it is determinative and because the record on appeal is sufficient to permit appellate review (Facie Libre Assoc. I, LLC v SecondMarket Holdings, Inc., 103 AD3d 565, 565 [1st Dept 2013], lv denied 21 NY3d 866 [2013]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 22, 2015

CLERK