LaRico v Ellerbe

[*1] LaRico v Ellerbe 2010 NY Slip Op 50123(U) [26 Misc 3d 133(A)] Decided on February 2, 2010 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 2, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter, JJ
570459/09.

Benedict LaRico, Plaintiff-Respondent,

against

Edward Ellerbe, Defendant-Appellant.

Defendant appeals, in effect (see CPLR 5520[c]), from a judgment of the Civil Court of the City of New York, New York County (Debra Rose Samuels, J.), entered on or about December 17, 2008, after trial, in favor of plaintiff and awarding him damages in the principal sum of $18,500.

Per Curiam.

Judgment (Debra Rose Samuels, J.), entered on or about December 17, 2008, affirmed, without costs.

The evidence adduced at trial amply supports Civil Court's determination that plaintiff was entitled to the return of the "binder" and down payment plaintiff made to defendant. The record established that the requisite approval of the cooperative board was not obtained for the subject application to purchase shares to defendant's unit (see Alter v Levine, 57 AD3d 923 [2008]; Moss v Brower, 213 AD2d 215 [1995]). Additionally, there is no evidence that the cooperative board's refusal to approve the application was attributable to any fault or bad faith conduct on plaintiff's part (see Rosenthal v Oakes, 41 AD3d 305 [2007]).

We have examined defendant's remaining contentions and find them to be without merit.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: February 02, 2010