Cannavino v. Davis

In an action, inter alia, for a judgment declaring the voting rights of the individual parties in their capacities as shareholders and directors of Rombout Hunt, Inc., the proposed intervenor, Joseph Forman, appeals from an order of the Supreme Court, Duchess County (Marlow, J.), dated February 27, 2001, which denied his motion for leave to intervene as a defendant, and the defendants appeal from so much of an order of the same court, also dated February 27, 2001, as granted the cross motion of the plaintiffs for partial summary judgment as to the first cause of action and denied their motion for partial summary judgment as to the same cause of action. Ordered that the order denying the motion of Joseph For-man is affirmed; and it is further, Ordered that the order, inter alia, granting the cross motion is affirmed insofar as appealed from; and it is further, [361] Ordered that the plaintiffs-respondents are awarded one bill of costs. The defendants admit they attended the meeting in question and voted in favor of the 1993 resolution which superseded the by-laws of Rombout Hunt, Inc. Moreover, neither defendant objected to the resolution for seven years. Consequently, they have waived any irregularity in the way the resolution was passed (see, Ench v Breslin, 241 AD2d 475; Garson v Garson, 105 AD2d 726, affd 66 NY2d 928). Accordingly, the plaintiffs made a prima facie showing, unrebutted by the defendants, which entitled them to summary judgment as to their first cause of action (see, CPLR 3212; Zuckerman v City of New York, 49 NY2d 557). Moreover, the Supreme Court properly exercised its discretion when it denied Joseph Forman’s motion for leave to intervene in this action as a defendant (see, Osman v Sternberg, 168 AD2d 490). The appellants’ remaining contentions are without merit. O’Brien, J. P., Florio, Schmidt and Townes, JJ., concur.