COOPER v. WEST 20TH STREET TENANTS CORP

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

E. Thorne COOPER, et al., Plaintiffs-Appellants, v. 6 WEST 20TH STREET TENANTS CORP., et al., Defendants-Respondents.

Decided: February 18, 1999

TOM, J.P., MAZZARELLI, ANDRIAS and SAXE, JJ. Mark J. Alonzo, for plaintiffs-appellants. Emily Maruja Bass, for defendants-respondents.

Judgment, Supreme Court, New York County (Edward Lehner, J.), entered July 28, 1998, which, upon the prior grant of defendants' motion for summary judgment, dismissed plaintiffs' amended verified complaint, unanimously affirmed, without costs.

 Plaintiffs held shares of the defendant cooperative corporation allocated to the seventh floor of its building from 1979 through 1993, when plaintiffs' shares were purchased in a foreclosure sale by a director of the cooperative.   Plaintiffs thereafter commenced this action against the cooperative and its directors for breach of fiduciary duty, based on claims that the cooperative impeded plaintiffs' efforts from 1989 through 1993 to sell their shares by actions improperly motivated by the desire to enable a board-member to purchase the shares at a below-market price, and constituting treatment of plaintiffs improperly disparate from that afforded other shareholders.   The evidence submitted by defendants in support of their motion for summary judgment, which plaintiffs failed to contradict, negates plaintiffs' conclusory assertions that the challenged actions of the board were taken in bad faith, were due to the domination, control or improper influence of the director who ultimately purchased plaintiffs' shares, or constituted improper disparate treatment of plaintiffs.   Accordingly, the motion court correctly determined as a matter of law that defendants' challenged actions were protected by the business judgment rule (see, Matter of Levandusky v. One Fifth Ave. Apt. Corp., 75 N.Y.2d 530, 537-540, 554 N.Y.S.2d 807, 553 N.E.2d 1317).

 Plaintiffs' speculation that an additional opportunity to conduct discovery might turn up some evidence giving rise to a triable issue of fact affords no basis for denial or continuance of the motion pursuant to CPLR 3212(f) (see, e.g., First City Natl. Bank and Trust Co. v. Heaton, 165 A.D.2d 710, 712, 563 N.Y.S.2d 783).   In this connection, we note that plaintiffs evidently took no steps to pursue discovery in support of their action for fully 15 months after service of defendants' answer, and then belatedly served notice of the deposition of one witness about one month before defendants moved for summary judgment.   Inasmuch as plaintiffs' inability to oppose the summary judgment motion resulted from their own voluntary inaction, their reliance on CPLR 3212(f) is misplaced (Selznick v. Ordan Corp., 202 A.D.2d 268, 269, 609 N.Y.S.2d 5).

MEMORANDUM DECISION.