MNY 260 Park Ave. S., LLC v Max 260 Park Ave. S., LLC

MNY 260 Park Ave. S., LLC v Max 260 Park Ave. S., LLC 2009 NY Slip Op 05383 [63 AD3d 628] June 30, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 5, 2009

MNY 260 Park Avenue South, LLC, et al., Respondents,
v
Max 260 Park Avenue South, LLC, Appellant, et al., Defendants.

—[*1] Kramer Levin LLP, New York (Marshall H. Fishman of counsel), for appellant.

Morgan, Lewis & Bockius LLP, New York (John M. Vassos of counsel), for respondents.

Order, Supreme Court, New York County (Bernard J. Fried, J.), entered November 13, 2008, which, to the extent appealed from as limited by the briefs, denied defendant Max 260 Park Avenue South, LLC's motion for summary judgment on its third and fourth cause of action only with respect to the December capital call, and granted plaintiffs' motion for summary judgment on the same issue, unanimously affirmed, with costs.

The court correctly found that the moving defendant failed to make its initial prima facie showing that plaintiffs' interests were properly diluted. Plaintiffs demonstrated that dilution was improper because there was no adherence to the requirements set forth in defendant's limited liability corporation agreement regarding the qualifications of a "Funding Member" (see Hanson v Capital Dist. Sports, 218 AD2d 909, 911 [1995]), and defendant failed to overcome that demonstration (see Domaradzki v Glen Cove Ob/Gyn Assoc., 242 AD2d 282 [1997]).

We have considered defendant's remaining contentions and find them unavailing. Concur—Gonzalez, P.J., Friedman, Moskowitz, Renwick and Freedman, JJ.