Ilene SILVERSTEIN, John Doe and Jane Doe, Respondent(s). GORBROOK ASSOCIATES INC., and Norman Fishman, derivatively on behalf of Gorbrook Associates, Inc., Petitioner(s)
[965 N.Y.S.2d 852] Litman & Tierman, P.A., New York, Attorney for Petitioner.
Ackerman, Levine, Cullen, Brickman & Limmer, LLP, of counsel to Litwin & Tierman, P.A., Great Neck, Attorney for Petitioners.
Canfield, Madden & Ruggiero, LLP, Garden City, Attorney for Respondent.
SCOTT FAIRGRIEVE, J.
Gorbrook Associates, Inc. and Norman Fishman, derivatively
on behalf of Gorbrook Associates, Inc., commenced this holdover summary proceeding against Ilene Silverstein concerning the premises located at 9 Mitchell Avenue, Plainview, New York.
Allegations of Petition
The holdover petition dated August 18, 2010, alleges that Petitioner owns the residence at 9 Mitchell Avenue, Plainview, New York.
Paragraph 2 of the petition alleges that Norman Fishman owns 25 shares of Gorbrook.
Paragraph 3 & 4 allege that Gorbrook has two members of the board of directors and that Norman Fishman is the sole disinterested director concerning this matter. The petition states that Norman Fishman is also an officer and has been authorized by Gorbrook's directors to bring this matter.
Paragraph 5 alleges that Norman Fishman is also suing derivatively on behalf of Gorbrook pursuant to New York Business Corporation Law § 626.
Paragraph 7 alleges that Ilene Silverstein is the daughter of Allen Silverstein and the sister of Eric Silverstein.
Paragraph 8 alleges that Norman Fishman and Allen Silverstein are the only directors of Gorbrook.
Paragraph 11 alleges that on or about August 1, 2009, either or both Allen Silverstein and/or Eric Silverstein arranged for Ilene Silverstein and her husband to move into the premises without a lease or contractual or statutory grant, authority or other basis.
Paragraph 13 states that Respondents are " at most, a ‘ tenancy at will or by sufferance’ of the Premises pursuant to New York Real Property Law § 228."
Norman Fishman alleges the following with respect to Allen Silverstein in paragraphs 14-17:
14. In or about November 2009, and from time to time thereafter, N. Fishman demanded, in one or more conversations, that A. Silverstein cooperate and/or not interfere with action by Gorbrook to secure payments from I. Silverstein for use and occupancy of the Premises and/or to remove I. Silverstein and her aforesaid husband from possession of the Premises.
[965 N.Y.S.2d 853] 15. In or about November 2009, and from time to time thereafter, A. Silverstein was otherwise aware
that N. Fishman wanted Gorbrook to secure payments from I. Silverstein for use and occupancy of the Premises and/ or to remove I. Silverstein and her aforesaid husband from possession of the Premises.
16. In spite of the aforesaid demands to A. Silverstein, and his awareness of such demands, A. Silverstein refused to cooperate and/or attempted to interfere with, and otherwise opposed, the aforesaid action by Gorbrook to secure payments from I. Silverstein for use and occupancy of the Premises and/or to remove I. Silverstein and her aforesaid husband from possession of the Premises.
17. Notwithstanding such demands to A. Silverstein, and his awareness of such demands, A. Silverstein is opposed to some or all of the relief that the petitioners seek in this proceeding, so it would have been futile for N. Fishman to attempt to secure the approval of A. Silverstein for Gorbrook to seek such relief assuming arguendo that such approval was necessary.
Paragraphs 18, 19 and 20 allege that a 30 day notice to quit was served upon Respondents but they have failed to vacate.
Grounds for Dismissal
Respondents moved for an order of dismissal pursuant to CPLR 3211(A)(7) on the grounds that Norman Fishman does not have the authority to bring this proceeding and or the additional grounds that a shareholder can't maintain a summary proceeding derivatively.
The Appellate Term by its order dated December 7, 2012, held that this court should determine whether the summary proceeding can be maintained derivatively and/or whether the Gorbrook directors authorized the instant proceeding.
Affidavit of Ilene Silverstein
Ilene Silverstein alleges in her affidavit, dated September 7, 2010, that she has a contract to purchase the said premises. The contract is dated January 18, 2009, with a purchase price of $253,000, with a closing date of on/or about June 1, 2009 (see Exhibit B attached to Ilene Silverstein's affidavit).
This contract is signed by both Norman Fishman and Ilene Silverstein with no dates next to their signatures. Attached to Exhibit B is the FHA Purchase Agreement Addendum signed only by Ilene Silverstein dated January 23, 2010.
Also attached to the affidavit of Ilene Silverstein is the summons and complaint, dated May 27, 2010, concerning the litigation pending in the Supreme Court, Nassau County, against Gorbrook Associates, Inc., Norman Fishman, Rita Fishman, Individually and as Executrix of the Estate of Ted Fishman, wherein Ilene Silverstein seeks a declaration that the contract is valid. Attached to the said summons and complaint is the Notice of Termination of Residential Contract of Sale, dated January 5, 2010, wherein Gorbrook Associates, by Norman Fishman, terminated the contract of sale.
Ilene Silverstein asserts in her affidavit (paragraph 3) that Norman Fishman owns 25% of the shares, 25% is owned by her father Allen Silverstein, 25% by her sister-in-law Robin Silverstein, and 25% by Rita Fishman as beneficiary of the estate of Ted Fishman (Norman Fishman's brother).
Ilene Silverstein claims that Gorbrook has three directors, namely Norman Fishman, Allen Silverstein and Robin Silverstein. There has never been a vote of board of directors authorizing this summary [965 N.Y.S.2d 854] proceeding and thus Norman Fishman doesn't have the authority to bring this proceeding. It is further stated that Norman Fishman doesn't have the authority to bring this proceeding as Treasurer. Furthermore, it is contended that a derivative shareholder proceeding is not authorized by RPAPL § 721 which is being pursued by Norman Fishman.
Ilene Silverstein contends in paragraphs 5 and 6 of her affidavit that the said contract of sale was signed in the spring of 2009. She moved into the said premises in October of 2009, with Norman Fishman's consent. Ilene Silverstein contends this summary proceeding is a vindictive attempt by ...