IN RE: Application of Norman S. EXTRACT (1999)

Order, Supreme Court, New York County (Louis York, J.), entered November 30, 1998, which, inter alia, directed a hearing to assess petitioner tenant/shareholder's damages caused by respondent condominium Board's failure to either waive or exercise its right of first refusal to purchase petitioner's apartment, unanimously affirmed, with costs.

 We agree with the IAS court that respondent's July 2, 1998 letter to petitioner was not a request for “further information with respect to the Outside Offeror and the Sale or Lease Agreement”, as authorized by respondent's by-laws, but an imposition of conditions upon the proposed sale not authorized by the by-laws, and not made in good faith.   Since such “request” was not authorized, respondent cannot argue that the time to exercise its right of first refusal never began to run because petitioner did not comply therewith (see, Watergate II Apts. v. Buffalo Sewer Auth., 46 N.Y.2d 52, 57, 412 N.Y.S.2d 821, 385 N.E.2d 560), and since it was not made in good faith, that judicial review thereof is precluded by the business judgment rule (see, Smukler v. 12 Lofts Realty, 178 A.D.2d 125, 576 N.Y.S.2d 862;  Matter of Vacca v. Board of Mgrs. of Primrose Lane Condominium, 251 A.D.2d 674, 676 N.Y.S.2d 188).   We have considered respondent's other arguments and find them unpersuasive.

MEMORANDUM DECISION.