Kralik v. 239 East 79th Street Owners Corp.

54 A.D.3d 267, 862 N.Y.S.2d 507, 2008 NY Slip Op 6580, 2008 N.Y. App. Div. LEXIS 7808

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 12, 2008
• Status: Published

Opinion

Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered June 1, 2006, which, inter alia, granted plaintiffs’ motion for summary judgment declaring them to be holders of unsold shares in defendant cooperative corporation, entitled to sublet without consent or fee, and enjoined defendant from interfering with such rights, unanimously affirmed, with costs.

Even assuming, as the co-op argues, that the definition of “unsold shares” in paragraph 38 of the proprietary lease as certain shares issued “pursuant to” the offering plan served to incorporate by reference the specific provisions of the offering plan relied on by the co-op, nothing in the offering plan indicates that noncompliance with such provisions divests holders of unsold shares of that status (see Bestform, Inc. v Herman, 23 AD3d 253 [2005], Iv denied 6 NY3d 705 [2006]). Also even assuming, as the co-op argues, that mere intent to occupy the apartment, as opposed to actual occupancy, on the part of a holder of unsold shares terminates that status, no issue of fact exists as to plaintiffs’ intent to occupy; the co-op failed to adduce any proof of such intent even though one of the plaintiffs had been deposed, and any contention by the co-op that further disclosure might reveal evidence of such intent would reflect nothing more than an ineffectual “mere hope” insufficient to defeat summary judgment. Concur—Gonzalez, J.P., Williams, Catterson and Moskowitz, JJ.