GPS Global Parking Solutions, LLC v. 151 West 17th Street Condominium

93 A.D.3d 463, 939 N.Y.S.2d 697

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 8, 2012
• Status: Published

Opinion

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered July 18, 2011, which denied the motion of defendant Board of Directors and its individual members to dismiss the complaint as against them, unanimously affirmed, without costs.

We accept the allegations of the complaint as true and construe the inferences that may be drawn therefrom in plaintiffs favor, as we must on a motion to dismiss pursuant to CPLR 3211 (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; DeMicco Bros., Inc. v Consolidated Edison Co. of N.Y., Inc., 8 AD3d 99 [2004]). We find that the complaint sufficiently states a claim against the Condominium Board and its individual members for trespass and misappropriation of property. In the complaint, plaintiff asserts that defendants directed employees of the condominium to continue to trespass on plaintiffs personal property and disrupt its business in bad faith and in furtherance of their personal “grudge” against plaintiff or its principal. This allegation of bad faith and a breach of fiduciary duty, not protected by the business judgment rule, is sufficient to withstand the motion to dismiss (see Matter of Y & O Holdings [NY] v Board of Mgrs. of Exec. Plaza Condominium, 278 AD2d 173 [2000]). Concur — Tom, J.P., Andrias, Catterson, Moskowitz and Román, JJ.