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

Janis PASTENA, Plaintiff–Appellant, v. 61 WEST 62 OWNERS CORP., Defendant–Respondent.


Decided: February 26, 2019

Renwick, J.P., Richter, Tom, Kahn, Moulton, JJ. Morrison Law Offices of Westchester, PC, New York (Arthur Morrison of counsel), for appellant. Braverman Greenspun, P.C., New York (Kelly A. Ringston of counsel), for respondent.

Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered July 21, 2017, which denied plaintiff's motion for summary judgment on the complaint for declaratory relief, and granted defendant's motion to dismiss the complaint, unanimously modified, on the law, to deny defendant's motion, and to declare that plaintiff is not a holder of unsold shares, and otherwise affirmed.

On this motion, Plaintiff has failed to provide sufficient documentary evidence demonstrating that she is a holder of unsold shares in the corporation (see Kralik v. 239 E. 79th St. Owners Corp., 5 N.Y.3d 54, 59, 799 N.Y.S.2d 433, 832 N.E.2d 707 [2005];  Sassi–Lehner v. Charlton Tenants Corp., 55 A.D.3d 74, 78–79, 863 N.Y.S.2d 20 [1st Dept. 2008] ).

However, even if factual issues were presented by plaintiff's contract of sale, paragraph 38 of the proprietary lease, which purportedly exempts holders of unsold shares from certain expenses and fees assessed by the landlord, is void as a matter of law (see Spiegel v. 1065 Park Ave. Corp., 305 A.D.2d 204, 759 N.Y.S.2d 461 [1st Dept. 2003] ).

Upon finding that the documentation established that plaintiff was not entitled to the declaration she sought, the court should have declared in defendant's favor, rather than dismissing the action (Rotblut v. 150 E. 77th St. Corp., 79 A.D.3d 532, 533, 914 N.Y.S.2d 22 [1st Dept. 2010] ).