KRALIK v. 239 EAST 79TH STREET OWNERS CORP (2004)

Supreme Court, Appellate Division, First Department, New York.

George KRALIK, et al., Plaintiffs-Appellants, v. 239 EAST 79TH STREET OWNERS CORP., Defendant-Respondent.

Decided: February 10, 2004

NARDELLI, J.P., MAZZARELLI, ELLERIN, FRIEDMAN, JJ.

Thomas P. Kerrigan, for Plaintiffs-Appellants. Laurence D. Pittinsky, for Defendant-Respondent.

Order, Supreme Court, New York County (Marylin Diamond, J.), entered September 26, 2002, which granted defendant's motion for summary judgment and declared plaintiffs not to be “holders of unsold shares” in the cooperative, unanimously affirmed, without costs.

Plaintiffs contend that they are holders of unsold shares by virtue of their compliance with ¶ 38(a) of the proprietary lease. However, such a provision, alone, “does not create rights [as a holder], it merely extinguishes them” (Craig v. Riverview E. Owners, 156 A.D.2d 157, 158, 548 N.Y.S.2d 204). There must also be compliance with regulatory requirements pertaining to such holders (see Pacella v. 107 W. 25th St. Corp., 271 A.D.2d 342, 707 N.Y.S.2d 75).

Plaintiffs concede that they never registered as a broker (13 NYCRR § 18.3 [w] [1] ), and failed to submit sufficient evidence that the sponsor had guaranteed their obligations under the proprietary lease (§ 18.3[w][3] ). Thus, as a matter of law, they never became holders of unsold shares.

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