

Fernholz v Hart (2017 NY Slip Op 08207)





Fernholz v Hart


2017 NY Slip Op 08207


Decided on November 21, 2017


Appellate Division, First Department


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.



Decided on November 21, 2017

Friedman, J.P., Gische, Kapnick, Kahn, Moulton, JJ.


5028 106980/11

[*1]Mauricio Fernholz, et al., Plaintiffs-Respondents,
vCraig Hart, et al., Defendants-Respondents, The Board of Managers of the Washington Irving Condominium, Defendant-Appellant.


Winget, Spadafora & Schwartzberg, LLP, New York (Dianna D. McCarthy of counsel), for appellant.

Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered July 25, 2014, which, to the extent appealed from, denied defendant Board of Managers of the Washington Irving Condominium's motion for summary judgment dismissing the nuisance and nuisance per se causes of action and the cross claims based on negligence and breach of contract against it, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint and cross claims against the Board.
Plaintiffs and defendants Craig Hart and Rebecca Barber, the owners of the apartment directly above plaintiffs' apartment, challenge the Board's 2004 decision not to require the former owner of the Hart and Barber apartments to rebuild an interior wall she had demolished without authorization. They contend that the absence of the wall created a condition that amplified noises from the Hart and Barber apartment.
The Board established prima facie its entitlement to summary dismissal of the complaint and cross claims on the ground that its decision was protected by the business judgment rule (see Matter of Levandusky v One Fifth Ave. Apt. Corp. , 75 NY2d 530 [1990]). The record shows that the Board engaged an independent expert who opined that the removal of the wall did not affect the structural integrity of the building and did not cause the noise.
In opposition, plaintiffs and Hart and Barber failed to raise a triable issue of fact whether the Board's decision not to require rebuilding of the wall and its handling of plaintiffs' noise complaint were in breach of its fiduciary duty to the condominium (see id.  at 538). They submitted no evidence that the Board's actions were not taken in furtherance of a corporate purpose or that the Board acted in bad faith, arbitrarily, or out
of favoritism, discrimination or malice (see 40 W. 67th St. v Pullman , 100 NY2d 147, 156, 157 [2003]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: NOVEMBER 21, 2017
CLERK


