Michael Gandelman v 150 Burns Apartment Corp.

Gandelman v 150 Burns Apt. Corp. 2004 NY Slip Op 08656 [12 AD3d 565] November 22, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2005

Michael Gandelman et al., Appellants,
v
150 Burns Apartment Corp., Respondent.

—[*1]

In an action, inter alia, for a judgment declaring that the plaintiffs are holders of unsold shares in the defendant 150 Burns Apartment Corp. and must obtain the corporation's consent to sublet the subject apartment, the plaintiffs appeal from an order of the Supreme Court, Queens County (Dollard, J.), entered October 7, 2002, which denied their motion for summary judgment declaring that they are the holders of unsold shares in the defendant corporation and, in effect, searched the record and granted summary judgment to the defendant.

Ordered that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Queens County, for the entry of a judgment in favor of the defendant declaring that the plaintiffs are not holders of unsold shares in the defendant 150 Burns Apartment Corp.

On their motion for summary judgment, the plaintiffs failed to submit evidence sufficient to establish that the sponsor, Derma Holdings, had designated them as the holders of unsold shares (see 13 NYCRR 18.3 [w] [1]) or that the sponsor had guaranteed their obligations under the proprietary lease (see 13 NYCRR 18.3 [w] [3]). Accordingly, the Supreme Court properly denied the plaintiffs' motion for summary judgment. Furthermore, based on the defendant's papers in opposition, the Supreme Court properly determined that the plaintiffs did not qualify as holders of unsold shares in the defendant corporation, and, in effect, searched the record and granted summary judgment to the defendant (see Gorbatov v Gardens 75th St. Owners Corp., 247 AD2d 440 [1998]; Thompson v 490 W. End Apts. Corp., 252 AD2d 430 [1998]; Kralik v 239 E. 79th St. Owners Corp., 4 [*2]AD3d 144 [2004]; Pacella v 107 W. 25th St. Corp., 271 AD2d 342 [2000]; cf. Trusu v Thornton-Burns Owners Corp., 271 AD2d 683 [2000]; Matter of Baranello v Lehrberger, 212 AD2d 781 [1995]).

Since this is a declaratory judgment action, we remit the matter to the Supreme Court, Queens County, for the entry of a judgment in favor of the defendant declaring that the plaintiffs are not holders of unsold shares in the corporation (see Lanza v Wagner, 11 NY2d 317, 334 [1962], appeal dismissed 371 US 74 [1962], cert denied 371 US 901 [1962]). Florio, J.P., Krausman, Fisher and Lifson, JJ., concur.