MNY 260 PARK AVENUE SOUTH LLC v. Anthony E. Westreich, et al., Defendants. (2009)

Order, Supreme Court, New York County (Bernard J. Fried, J.), entered November 13, 2008, which, to the extent appealed from as limited by the briefs, denied defendant Max 260 Park Avenue South, LLC's motion for summary judgment on its third and fourth cause of action only with respect to the December capital call, and granted plaintiffs' motion for summary judgment on the same issue, unanimously affirmed, with costs.

The court correctly found that the moving defendant failed to make its initial prima facie showing that plaintiffs' interests were properly diluted.   Plaintiffs demonstrated that dilution was improper because there was no adherence to the requirements set forth in defendant's limited liability corporation agreement regarding the qualifications of a “Funding Member” (see Hanson v. Capital Dist. Sports, 218 A.D.2d 909, 911, 630 N.Y.S.2d 429 [1995] ), and defendant failed to overcome that demonstration (see Domaradzki v. Glen Cove Ob/Gyn Assoc., 242 A.D.2d 282, 660 N.Y.S.2d 739 [1997] ).

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