Hazen v. Bunning

Hazen v Bunning (2024 NY Slip Op 05890) Hazen v Bunning 2024 NY Slip Op 05890 Decided on November 26, 2024 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 and Entered: November 26, 2024 Before: Manzanet-Daniels, J.P., González, Scarpulla, Shulman, Higgitt, JJ. Index No. 651156/23 Appeal No. 3100-3101 Case No. 2023-05589, 2024-00633 [*1]Wendy Hazen, Plaintiff-Appellant, v David Bunning et al., Defendants-Respondents, The Corinthian, Nominal Defendant-Respondent. Newman Ferrara LLP, New York (Jeffrey M. Norton and Benjamin D. Baker of counsel), for appellant. Abrams Garfinkel Margolis Bergson, LLP, New York (Barry G. Margolis of counsel), for respondents. Order, Supreme Court, New York County (Lyle E. Frank, J.), entered October 12, 2023, which granted defendants' motion to dismiss the complaint, and order, same court and Justice, entered January 29, 2024, which denied plaintiff's motion to renew defendants' motion to dismiss, unanimously affirmed, with costs. The Court properly upheld the business judgment rule (see 40 W. 67th St. Corp. v Pullman, 100 NY2d 147, 149-150 [2003]), to determine that the condominium board of the Corinthian followed its by-laws by approving the modernization of the elevators without first obtaining the approval of 70 percent of the unit owners. The project was properly categorized as a repair rather than "additions, alterations, or improvements" under the by-laws. Following the recommendations of an elevator consultant that the board embark on a modernization project as preventative maintenance because the elevators' parts were obsolete, and service disruptions could last days or even weeks to locate increasingly rare replacement parts, the board was entitled to repair the elevators (see Pomerance v McGrath, 124 AD3d 481, 483 [1st Dept 2015], lv denied 25 NY3d 1038 [2015]). We have considered plaintiff's remaining arguments and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: November 26, 2024