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Consolidated Resources, LLC v. 210-220- 230 Owner's Corp.

February 17, 2009

CONSOLIDATED RESOURCES, LLC, RESPONDENT,
v.
210-220- 230 OWNER'S CORP., ET AL., APPELLANTS.



In an action, inter alia, for a judgment declaring that the plaintiff is the owner of certain shares of stock of the defendant 210-220-230 Owner's Corp., the defendants appeal (1), as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Nastasi, J.), entered September 26, 2007, as denied that branch of their motion which was for summary judgment, and, sua sponte, imposed a sanction in the sum of $250 upon their counsel pursuant to 22 NYCRR 130-1.1, and (2) from an order of the same court entered December 12, 2007, which denied that branch of their motion which was for leave to reargue that branch of their prior motion which was for summary judgment, and, in effect, denied that branch of their motion which was to vacate the sanction imposed upon their counsel pursuant to 22 NYCRR 130-1.1.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

WILLIAM F. MASTRO, J.P., HOWARD MILLER, EDWARD D. CARNI and WILLIAM E. McCARTHY, JJ.

(Index No. 13246/05)

DECISION & ORDER

ORDERED that the appeal from so much of the order entered September 26, 2007, as, sua sponte, imposed a sanction in the sum of $250 upon the defendants' counsel pursuant to 22 NYCRR 130-1.1, is dismissed; and it is further,

ORDERED that the appeal from so much of the order entered December 12, 2007, as denied that branch of the defendants' motion which was for leave to reargue that branch of their motion which was for summary judgment is dismissed; and it is further,

ORDERED that the order entered September 26, 2007, is reversed insofar as reviewed, on the law, that branch of the defendants' motion which was for summary judgment is granted, and the matter is remitted to the Supreme Court, Westchester County, for the entry of a judgment, inter alia, declaring that the plaintiff is not the owner of certain shares of stock of the defendant 210-220-230 Owner's Corp., or the holder of the proprietary lease for the subject cooperative apartment, and that the defendants are not required to issue new stock certificates and a new proprietary lease to the plaintiff; and it is further,

ORDERED that the order entered December 12, 2007, is reversed insofar as reviewed, on the law, the facts, and in the exercise of discretion, that branch of the defendants' motion which was to vacate the sanction imposed upon their counsel pursuant to 22 NYCRR 130-1.1 is granted, and so much of the order entered September 26, 2007, as, sua sponte, imposed a sanction upon the defendants' counsel is vacated; and it is further,

ORDERED that one bill of costs is awarded to the defendants.

No appeal lies as of right from that part of an order which does not decide a motion made on notice (see CPLR 5701[a][2]; see Mohler v Nardone, 53 AD3d 600, 600), and leave to appeal has not been granted from that portion of the order entered September 26, 2007 (see CPLR 5701[c]). Moreover, the defendants are not aggrieved by the portion of the order entered September 26, 2007, which, sua sponte, imposed a sanction in the sum of $250 upon their counsel pursuant to 22 NYCRR 130-1.1. Therefore, the appeal from that portion of the order entered September 26, 2007, must be dismissed.

The appeal from so much of the order entered December 12, 2007, as denied that branch of the defendants' motion which was for leave to reargue that branch of their motion which was for summary judgment also must be dismissed, as no appeal lies from the denial of reargument (see Degliuomini v Degliuomini, 45 AD3d 626, 627).

That branch of the defendants' motion which was for summary judgment was not barred by the single motion rule, and the law of the case doctrine does not apply, as the defendants never previously moved for summary judgment (see CPLR 3211[e]; Ramos v City of New York, 51 AD3d 753, 754; Santiago v Pyramid Crossgates Co., 294 AD2d 789, 790; Tapps of Nassau Supermarkets v Linden Blvd., 269 AD2d 306, 307).

The determination of that branch of the defendants' motion which was for summary judgment is predicated upon whether a triable issue of fact exists regarding the validity of the challenged transaction. Whether the transaction was valid must be based on the interpretation of provisions of the controlling cooperative corporation documents, regardless of whether the shares of the subject cooperative apartment were "unsold shares" (Kralik v 239 E. 79th St. Owners Corp., 5 NY3d 54, 59). The relationship between the shareholder/lessee of a cooperative corporation and the corporation is determined by applying the usual rules of contract interpretation to ...


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