![]() The defendant condominium established its prima facie entitlement to judgment as a matter of law by demonstrating that the actions it took by objecting to the proposed intended use of the commercial space by 7-Eleven were "taken in good faith and in the exercise of honest judgment in the lawful and legitimate furtherance of corporate purposes" ( Matter of Levandusky v One Fifth Ave. Similarly, the second cause of action – asserting a bad faith breach of contract by defendant – was properly dismissed. Furthermore, there is no basis to find that the exception for cases where the issue presented "is likely to recur, typically evades review, and raises a substantial and novel question" is applicable ( Zuckerman v Goldstein, 78 AD3d 412 ) lv denied 17 NY3d 779 ). Accordingly, the dispute is moot, and there is no longer a "justiciable controversy" within the meaning of CPLR 3001 ( see Matter of Ideal Mut. ![]() We, however, affirm the dismissal of the complaint's first cause of action for a declaratory judgment as to whether plaintiff may lease to nonparty 7-Eleven, on the ground that plaintiff conceded below that 7-Eleven is no longer interested in such a lease. at 531 see M & A Oasis v MTM Assoc., 307 AD2d 872 ). Defense counsel's Novemletter and defendant's subsequent expression of its intent, constituted "past conduct" creating a genuine dispute for which a declaration would have had an "immediate and practical effect of influencing conduct" ( id. Interest Research Group v Carey, 42 NY2d 527, 530 ). "hen a party contemplates taking certain action a genuine dispute may arise before any breach or violation has occurred" ( New York Pub. ![]() Supreme Court's dismissal of the first cause of action on the ground that a declaratory judgment would be merely "advisory" was an improvident exercise of its discretion. The court also initially granted summary judgment to defendant on its counterclaim for legal fees, but later denied it when plaintiff moved for reargument. The court granted defendant's cross motion for summary judgment, dismissing the declaratory judgment claim on the ground that "no justiciable controversy has been presented." It dismissed the breach of contract claim on the ground that plaintiff asked for an "advisory opinion" from the board, and the board provided such opinion. In August 2010, plaintiff moved for an order, pursuant to CPLR 3126(3), striking defendant's pleading, or, alternatively, to compel production of requested information under CPLR 3124.īy notice of cross motion, defendant moved for summary judgment dismissing the complaint, and for summary judgment on its counterclaim for legal fees. ![]() Lofts Condominium, 2012 NY Slip Op 02421 1st Dept., 2012) ![]()
0 Comments
Leave a Reply. |
AuthorWrite something about yourself. No need to be fancy, just an overview. ArchivesCategories |