KRALIK v. Council of New York Cooperatives, Amicus Curiae.

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

George KRALIK, et al., Plaintiffs-Respondents, v. 239 EAST 79TH STREET OWNERS CORP., Defendant-Appellant. Council of New York Cooperatives, Amicus Curiae.

Decided: August 12, 2008

GONZALEZ, J.P., WILLIAMS, CATTERSON, MOSKOWITZ, JJ. Rosenberg & Pittinsky, LLP, New York (Laurence D. Pittinsky of counsel), for appellant. Finder Novick Kerrigan LLP, New York (Thomas P. Kerrigan of counsel), for respondents. Snow Becker & Krauss P.C., New York (Marc J. Luxemburg of counsel), for amicus curiae.

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 coop 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 coop, nothing in the offering plan indicates that noncompliance with such provisions divests holders of unsold share of that status (see Bestform, Inc. v. Herman, 23 A.D.3d 253, 804 N.Y.S.2d 80 [2005], lv. denied 6 N.Y.3d 705, 812 N.Y.S.2d 34, 845 N.E.2d 466 [2006] ).   Also even assuming, as the coop 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 coop failed to adduce any proof of such intent even though one of the plaintiffs had been deposed, and any contention by the coop that further disclosure might reveal evidence of such intent would reflect nothing more than an ineffectual “mere hope” insufficient to defeat summary judgment.

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