Schwartz v. Roberts

—Order, Supreme Court, New York County (William J. Davis, J.), entered September 18, 1995, which granted defendants’ motion for summary judgment to dismiss the complaint pursuant to CPLR 3211 (c), unanimously reversed, on the law, without costs, and the complaint reinstated. In this action involving plaintiffs’ use of a unit in their cooperative residential building for professional purposes, we find that, accepting the facts alleged as true, as we must on a motion to dismiss the complaint (Morone v Morone, 50 NY2d 481, 484), plaintiffs have sufficiently raised an issue of bad faith on the part of the cooperative board (the named defendants) to defeat summary judgment under CPLR 3211 (c). Given the allegations concerning the professional use of three other units in the building, the questionable intentions plaintiffs ascribe to defendants with respect to the latter’s future use of the unit at issue, and the history of prior litigation between the parties, dismissal of the complaint prior to discovery was premature. Plaintiffs are entitled to discovery in order to develop whether defendants acted in bad faith in denying plaintiff wife’s use of the unit as professional offices (see, Cohen v 120 Owners Corp., 205 AD2d 394; Smukler v 12 Lofts Realty, 178 AD2d 125). Concur — Murphy, P. J., Milonas, Ellerin, Ross and Mazzarelli, JJ.