Estate of Sherman v Southbridge Towers, Inc.

Estate of Sherman v Southbridge Towers, Inc. 2016 NY Slip Op 08476 Decided on December 15, 2016 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 December 15, 2016
Sweeny, J.P., Renwick, Richter, Manzanet-Daniels, Kapnick, JJ.
650634/15 2514 2513

[*1]Estate of Charlotte Sherman, Plaintiff-Appellant,

v

Southbridge Towers, Inc., Defendant-Respondent.

Herrera Law Firm, New York (Nicomedes Sy Herrera of counsel), for appellant.

White Fleischner & Fino, LLP, New York (Evan A. Richman of counsel), for respondent.

Order, Supreme Court, New York County (Paul Wooten, J.), entered November 25, 2015, which granted defendant's motion to dismiss the complaint, and order, same court (Gerald Lebovits, J.), entered March 10, 2016, which denied plaintiff's motion to vacate the November 25, 2015 order, unanimously affirmed.

Contrary to its contention, plaintiff is not the shareholder of record with respect to the deceased tenant/cooperator's apartment. Stock certificates issued to the decedent were not automatically transferred to plaintiff upon the decedent's death (see Matter of Levin v Department of Hous. Preserv. & Dev. of City of N.Y., 140 Misc 2d 110 [Sup Ct, NY County 1988], mod on other grounds 151 AD2d 264 [1st Dept 1989]; 9 NYCRR 1727-8.3). Nor has any family member of the decedent satisfied the requirements for succession rights (see 9 NYCRR 1727-8.2[a]).

In plain and unambiguous language, the offering plan not only stated that no vote would be counted from apartments of which the shareholder of record was deceased and apartments as to which there were unresolved succession claims, and that "[e]states will be excluded from the vote," but also defined "Shareholders" as "those persons who are Shareholders of record of Sponsor as of the Filing Date" (see Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470, 475 [2004]). The decedent, not plaintiff, was the shareholder of record on the filing date.

We have considered plaintiff's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 15, 2016

CLERK