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124 Holdings, Inc. v. Spring Street Apartment Corp.

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


May 11, 2010

124 HOLDINGS, INC., PLAINTIFF-APPELLANT,
v.
SPRING STREET APARTMENT CORP., DEFENDANT-RESPONDENT.
SPRING STREET APARTMENT CORP., PLAINTIFF-RESPONDENT,
v.
SULLIVAN SPRING, LLC, ET AL., DEFENDANTS-RESPONDENTS.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered December 23, 2008, which, insofar as appealed from, in an action seeking, inter alia, an accounting, denied plaintiff 124 Holdings, Inc.'s (124) motion for summary judgment, unanimously affirmed, without costs.

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.

Tom, J.P., Sweeny, Moskowitz, DeGrasse, Manzanet-Daniels, JJ.

118132/02 & 600605/04

124 failed to establish its prima facie entitlement to judgment as a matter of law, as 124 did not demonstrate that defendant Spring Street Apartment Corp., a cooperative housing corporation, engaged in the unequal treatment of 124 in violation of Business Corporation Law § 501(c). The record shows that Spring Street entered into a transaction with Sullivan Spring LLC to lease the rights to advertise on an exterior wall of the subject building. 124 failed to show that the funds received by Spring Street were distributed to certain shareholders not including 124, which held the same class of shares (compare Wapnick v Seven Park Ave. Corp., 240 AD2d 245, 246 [1997]). Furthermore, although Sullivan Spring was created by several individual shareholders who held positions on Spring Street's board of directors, 124 has failed to establish that the actions of the individual board members could be imputed to Spring Street or that they were acting within the scope of their positions on Spring Street's board when they created Sullivan Spring (see Symbol Tech., Inc. v Deloitte & Touche, LLP, 69 AD3d 191 [2d Dept 2009]).

Nor was 124 entitled to summary judgment dismissing Spring Street's counterclaims, as the evidence in the record is insufficient to make a determination as to the viability of the counterclaims.

We have considered 124's remaining arguments, including that Spring Street violated Business Corporation Law § 713 and that it breached the proprietary lease, and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100511

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