Pastena v. 61 W. 62 Owners Corp.

Pastena v 61 W. 62 Owners Corp. (2019 NY Slip Op 01372) Pastena v 61 W. 62 Owners Corp. 2019 NY Slip Op 01372 Decided on February 26, 2019 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 February 26, 2019 Renwick, J.P., Richter, Tom, Kahn, Moulton, JJ. 8530 162453/14 [*1]Janis Pastena, Plaintiff-Appellant, v 61 West 62 Owners Corp., Defendant-Respondent. Morrison Law Offices of Westchester, PC, New York (Arthur Morrison of counsel), for appellant. Braverman Greenspun, P.C., New York (Kelly A. Ringston of counsel), for respondent. Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered July 21, 2017, which denied plaintiff's motion for summary judgment on the complaint for declaratory relief, and granted defendant's motion to dismiss the complaint, unanimously modified, on the law, to deny defendant's motion, and to declare that plaintiff is not a holder of unsold shares, and otherwise affirmed. On this motion, Plaintiff has failed to provide sufficient documentary evidence demonstrating that she is a holder of unsold shares in the corporation (see Kralik v 239 E. 79th St. Owners Corp., 5 NY3d 54, 59 [2005]; Sassi-Lehner v Charlton Tenants Corp., 55 AD3d 74, 78-79 [1st Dept 2008]). However, even if factual issues were presented by plaintiff's contract of sale, paragraph 38 of the proprietary lease, which purportedly exempts holders of unsold shares from certain expenses and fees assessed by the landlord, is void as a matter of law (see Spiegel v 1065 Park Ave. Corp., 305 AD2d 204 [1st Dept 2003]). Upon finding that the documentation established that plaintiff was not entitled to the declaration she sought, the court should have declared in defendant's favor, rather than dismissing the action (Rotblut v 150 E. 77th St. Corp., 79 AD3d 532, 533 [1st Dept 2010]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: FEBRUARY 26, 2019 CLERK