Minoff v. Irvington Estates Owners, Inc.

—In an action to recover damages for breach of contract based upon the withholding of consent to sublet a cooperative apartment, the plaintiffs appeal from an order of the Supreme Court, Westchester County (Fredman, J.), entered October 26, 1995, which denied their motion for summary judgment. Ordered that the order is affirmed, with costs. The plaintiffs are owners of a cooperative apartment in Irvington, New York. The defendants are the cooperative owners’ association, the managing agent of the complex, and the president of the cooperative’s Board of Directors (hereinafter the Board). After deciding to purchase a home, the plaintiffs attempted to sell their cooperative apartment through advertisments in the local "Pennysaver” magazine and through a real estate agent. Unable to sell the unit, the plaintiffs requested the Board’s permission to sublet. The proprietary lease allowed subletting only upon consent of the Board. The lease also stated that such consent "shall not be unreasonably withheld”. After reviewing documentation of the plaintiffs’ attempts to sell the unit, the Board denied the plaintiffs’ request. The plaintiffs commenced this action to recover damages for [617] "breach of contract” and thereafter moved for summary judgment. The Supreme Court denied the motion and we now affirm. Contrary to the plaintiffs’ contention, the Board did not summarily deny the plaintiffs’ request to sublet, as evidenced by the fact that the Board initially reserved decision until the plaintiffs submitted documentation of their attempt to sell the apartment (cf., Ludwig v 24 Plaza Tenants Corp., 184 AD2d 623). Moreover, the Supreme Court correctly concluded that questions of fact exist with respect to whether the withholding of consent to sublet had a legitimate relationship to the welfare of the cooperative and was thus reasonable (see, Matter of Levandusky v One Fifth Ave., 75 NY2d 530; Cooper v Greenbriar Owners Corp., 203 AD2d 509). Bracken, J. P., Thompson, Goldstein and McGinity, JJ., concur.