Costacos v Southbridge Towers, Inc.

Costacos v Southbridge Towers, Inc. 2018 NY Slip Op 04824 Decided on June 28, 2018 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 June 28, 2018
Acosta, P.J., Sweeny, Webber, Kahn, Oing, JJ.
6993 650718/17

[*1]John Costacos, as Executor of the Estate of George Costacos Andrews, Plaintiff-Appellant,

v

Southbridge Towers, Inc., Defendant-Respondent.

Pryor Cashman, LLP, New York (Jamie M. Brickell of counsel), for appellant.

Fleischner Potash Cardali Chernow Coogler Greisman Stark Stewart LLP, New York (Evan A. Richman of counsel), for respondent.

Order, Supreme Court, New York County (Robert R. Reed, J.), entered on or about June 16, 2017, which granted defendant's motion pursuant to CPLR 3211(a)(7) to dismiss the complaint, unanimously affirmed, without costs.

Defendant is a housing corporation and previously organized and operating as a limited-profit housing company pursuant to the Mitchell-Lama Law (Private Housing Finance Law art II) from 1970 until at least September 10, 2015 when it completed the process of dissolution and reconstitution as a market-rate housing corporation no longer subject to the Mitchell-Lama Law. The offering plan defined shareholders who could exchange their shares in the dissolved limited-profit housing company for shares in the reconstituted corporation as shareholders. Although decedent, not plaintiff, was a shareholder and a participant of this exchange, his shares were not exchanged but were required to be surrendered upon his death because he died three months before defendant's reconstitution to be a market-rate housing corporation (see Estate of Sherman v Southbridge Towers, Inc., 145 AD3d 575 [1st Dept 2016], lv dismissed in part and denied in part 29 NY3d 962 [2017]; Kay v Southbridge Towers, Inc., 145 AD3d 576 [1st Dept 2016], lv denied 29 NY3d 904 [2017]; 9 NYCRR 1727-8.3).

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

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 28, 2018

CLERK