Mittman v Netherland Gardens Corp.

Mittman v Netherland Gardens Corp. 2008 NY Slip Op 08280 [55 AD3d 512] October 30, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 10, 2008

Aaron Mittman et al., Respondents,
v
Netherland Gardens Corp., Appellant.

—[*1] Pennisi, Daniels & Norelli, L.L.P., Rego Park (Sherrie A. Taylor of counsel), for appellant.

Gallet Dreyer & Berkey, LLP, New York (Morrell I. Berkowitz of counsel), for respondents.

Order, Supreme Court, Bronx County (Sallie Manzanet-Daniels, J.), entered October 12, 2007, which denied defendant's motion for summary judgment dismissing the complaint, and granted plaintiffs' cross motion for summary judgment declaring them to be holders of unsold shares in defendant cooperative corporation entitled to sell without consent, and directed an inquest on damages, unanimously affirmed, without costs.

"[W]hether plaintiffs are holders of unsold shares should be determined solely by applying ordinary contract principles to interpret the terms of the documents defining their contractual relationship with the cooperative corporation" (Kralik v 239 E. 79th St. Owners Corp., 5 NY3d 54, 57 [2005]). Under this standard, the motion court properly determined that the character of the unsold shares had not changed in that the original buyer from the sponsor was a holder of unsold shares within the meaning of the offering plan, and the shares never lost their character as unsold because the apartment was never occupied by a purchaser for a bona fide occupancy (see LJ Kings, LLC v Woodstock Owners Corp., 46 AD3d 321, 322 [2007]). Regarding defendant's arguments that the original buyer and plaintiffs never amended the offering plan or were designated as holders of unsold shares by the sponsor who never guaranteed the payment of maintenance charges and assessments due from them with respect to the unit, there is nothing in the offering plan indicating that noncompliance with such provisions [*2]divests the holders of unsold shares of that status (see Kralik v 239 E. 79th St. Owners Corp., 54 AD3d 267 [2008]). Concur—Tom, J.P., Nardelli, Sweeny, McGuire and DeGrasse, JJ.