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THE CRITERIA FOR APPOINTMENT OF A TEMPORARY RECEIVER IN THIS PARTITION AND SALE ACTION WERE NOT MET (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the evidence did not support the appointment of a temporary receiver of a residential building and cooperative apartment that were the subjects of a partition and sale action:

CPLR 6401(a) permits the court, upon a motion by a person with an “apparent interest” in property, to appoint a temporary receiver of that property where “there is danger” that it will be “materially injured or destroyed.” However, the appointment of a temporary receiver “is an extreme remedy resulting in the taking and withholding of possession of property from a party without an adjudication on the merits” … .Therefore, a motion seeking such an appointment should be granted only where the moving party has made a “clear and convincing” evidentiary showing of “irreparable loss or waste to the subject property and that a temporary receiver is needed to protect their interests” … .

Here, the plaintiff failed to make the requisite showing. In particular, the plaintiff’s speculative and conclusory allegations that the defendants failed to repair and maintain the subject properties and commingled income derived from the subject properties with their personal income were insufficient to demonstrate that there was a danger of irreparable loss or material injury to the subject properties warranting the appointment of a temporary receiver … . Similarly, without more, the defendants’ failure to maintain adequate records does not demonstrate that the plaintiff’s interest in the subject properties is in imminent danger of irreparable loss or waste … . Cyngiel v Krigsman, 2021 NY Slip Op 01390, Second Dept 3-10-21

 

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A CORPORATION DOES NOT OWE A FIDUCIARY DUTY TO ITS MEMBERS OR SHAREHOLDERS (FIRST DEPT).

The First Department, dismissing the complaint, noted that the breach-of-a-fiduciary-duty action was brought solely against the corporation, which does not owe its members or shareholders a fiduciary duty:

“[I]t is well settled that a corporation does not owe fiduciary duties to its members or shareholders” … . Here, while the complaint alleges that defendant’s board of directors breached its fiduciary duty to plaintiff in refusing to approve the sale of certain units in the cooperative market to plaintiff, plaintiff brought this action solely against the cooperative corporation and thus, the complaint is dismissed. C & J Bros., Inc. v Hunts Point Term. Produce Coop. Assn., Inc., 2020 NY Slip Op 01454, First Dept 3-3-20

 

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CO-OP DISCRIMINATED AGAINST THE DISABLED COMPLAINANT BY REFUSING TO ALLOW HER TO KEEP A DOG IN HER APARTMENT (SECOND DEPT).

The Second Department determined the Commissioner of the NYS Division of Human Rights had properly found the co-op discriminated against complainant (Hough) by refusing to allow her to keep a dog in her apartment:

To establish that a violation of the Human Rights Law occurred and that a reasonable accommodation should have been made, Hough was required to demonstrate that she is disabled, that she is otherwise qualified for the tenancy, that because of her disability it is necessary for her to keep a dog in order for her to use and enjoy the apartment, and that reasonable accommodations could be made to allow her to keep a dog … . The term disability, as defined by Executive Law § 292(21), means “(a) a physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques or (b) a record of such an impairment or (c) a condition regarded by others as such an impairment.”

Here, there was substantial evidence in the record to conclude that Hough suffered from generalized anxiety disorder, an impairment demonstrable by medically accepted clinical or laboratory diagnostic techniques, and that she required the use of a companion dog to use and enjoy her apartment. There is sufficient evidence that having a dog would affirmatively enhance Hough’s quality of life by ameliorating the effects of her disability, thus demonstrating necessity within the meaning of the Human Rights Law … . Matter of 1 Toms Point Lane Corp. v New York State Div. of Human Rights, 2019 NY Slip Op 07392, Second Dept 10-16-19

 

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NYS STATE DIVISION OF HUMAN RIGHTS’ DETERMINATION THAT THE DISABLED COOPERATIVE SHAREHOLDER WAS DISCRIMINATED AGAINST WHEN SHE WAS PROHIBITED FROM KEEPING A DOG IN HER COOPERATIVE APARTMENT CONFIRMED BY THE COURT OF APPEALS, REVERSING THE APPELLATE DIVISION (CT APP).

The Court of Appeals, over a two-judge dissent, in a brief memorandum that did not recite the facts, reversed the Appellate Division and confirmed the NYS Division of Human Rights (SDHR) determination that petitioners had discriminated against the disabled complainant, a cooperative shareholder, by prohibiting her from keeping a dog in the cooperative apartment. Matter of Delkap Mgt., Inc. v New York State Div. of Human Rights, 2019 NY Slip Op 02260, CtApp 3-26-19

​SUMMARY OF THE FACTS FROM THE APPELLATE DIVISION’S DECISION (WHICH THE COURT OF APPEALS REVERSED HERE):

The complainant testified that, since obtaining the dog, her cardiac arrhythmia, which caused her to have rapid heart rate and experience palpitations, had significantly decreased; her ability to sleep had improved, resulting in her feeling less tired during the day; her discomfort due to her rheumatoid arthritis had improved because she was more physically active with the dog; and the dog decreased her stress, helping to improve the symptoms caused by her rheumatoid arthritis and cardiac arrhythmia.

Sometime after the hearing concluded, the petitioners directed the complainant to immediately remove her dog from her apartment contending, erroneously, that the SDHR had issued a final order in their favor. The complainant thereafter moved out of her apartment with the dog.

In a recommendation and findings … an administrative law judge (hereinafter ALJ) of the SDHR determined that the Coop had discriminated against the complainant in the terms, conditions, and privileges of her housing on the basis of her disability, and that she should have been allowed to keep the dog in her apartment as a reasonable accommodation for her disability. The ALJ also determined that the respondents retaliated against the complainant for opposing the discrimination and filing a complaint with the SDHR. The Acting Commissioner of the SDHR adopted the ALJ’s recommendation and findings and directed the petitioners to pay $5,000 to the complainant in compensatory damages for mental anguish and $10,000 in punitive damages, assessed a $5,000 penalty upon each petitioner payable to the State, and directed the petitioners to create and implement standard policies and procedures to evaluate shareholders’ requests for reasonable accommodations and to develop and implement training to prevent unlawful discrimination.

 

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MANAGER OF COOPERATIVE DID NOT HAVE A DUTY TO PROVIDE SECURITY IN EXTERIOR PUBLIC AREAS IN THIS THIRD PARTY ASSAULT CASE (FIRST DEPT).

The First Department, reversing Supreme Court, determined that the manager of a cooperative complex could not be liable for a third party assault occurring in exterior public areas:

Plaintiff Sander Palaj, and his wife suing derivatively, commenced this action to recover for personal injuries he allegedly sustained when he was shot outdoors in the co-operative complex known as Co-op City, which was managed by defendant Marion Scott Real Estate, Inc. at the time. However, a landowner’s duty to take minimal security precautions does not extend to exterior public areas, such as walkways and vestibules … . Palaj v Marion Scott Real Estate, Inc., 2019 NY Slip Op 00958, First Dept 2-7-19

 

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THE ACTUAL DIMENSIONS OF THE COOPERATIVE APARTMENT WERE SMALLER THAN THE DIMENSIONS DESCRIBED IN THE LISTING, THE LISTING COULD NOT BE DEEMED INCORPORATED BY REFERENCE INTO THE PURCHASE AGREEMENT, THE COMPLAINT ALLEGING BREACH OF CONTRACT, FRAUD AND DECEPTIVE BUSINESS PRACTICES PROPERLY DISMISSED (FIRST DEPT).

The First Department determined the misrepresentation of the dimensions of the cooperative apartment in the listing could not be deemed incorporated by reference into the purchase agreement. The complaint was therefore properly dismissed:

… [P]laintiffs allege that defendants prepared a floor plan, which accompanied the listing for the unit at issue, that stated that the unit was “~1,966” square feet, when it was, in fact, approximately 1,495 square feet. Plaintiffs contend that the floor plan was incorporated into the offering plan by reference, and the offering plan, in turn, was incorporated into the purchase agreement. …

The doctrine of incorporation by reference “is appropriate only where the document to be incorporated is referred to and described in the instrument as issued so as to identify the referenced document beyond all reasonable doubt'”… . Here, the listing is not identified in any of the relevant purchase documents … .

Moreover, any purported representation or warranty is refuted by the clear terms of the purchase agreement, which contains a merger clause, states that no representations are being made by the sponsor, that the unit was being purchased “as is” and that the onus was on the buyer to inspect “to determine the actual dimensions” prior to purchasing  … . …

Reasonable reliance is an element of claims for fraud, aiding and abetting fraud and negligent misrepresentation… . Plaintiffs cannot as a matter of law establish reasonable reliance on a representation concerning the condition of the apartment since they had the means to ascertain the truth of the condition … . …

… [P]plaintiffs’ allegations based on purported representations made in the listing fail to set forth a viable claim under General Business Law §§ 349 or 350, as they do not fall within the type of deceptive acts, that, if permitted to continue, would have a broad impact on consumers at large … . Von Ancken v 7 E. 14 L.L.C., 2018 NY Slip Op 08097, First Dept 11-27-18

CONTRACT LAW (THE ACTUAL DIMENSIONS OF THE COOPERATIVE APARTMENT WERE SMALLER THAN THE DIMENSIONS DESCRIBED IN THE LISTING, THE LISTING COULD NOT BE DEEMED INCORPORATED BY REFERENCE INTO THE PURCHASE AGREEMENT, THE COMPLAINT ALLEGING BREACH OF CONTRACT, FRAUD AND DECEPTIVE BUSINESS PRACTICES PROPERLY DISMISSED (FIRST DEPT))/INCORPORATION BY REFERENCE (CONTRACT LAW, (THE ACTUAL DIMENSIONS OF THE COOPERATIVE APARTMENT WERE SMALLER THAN THE DIMENSIONS DESCRIBED IN THE LISTING, THE LISTING COULD NOT BE DEEMED INCORPORATED BY REFERENCE INTO THE PURCHASE AGREEMENT, THE COMPLAINT ALLEGING BREACH OF CONTRACT, FRAUD AND DECEPTIVE BUSINESS PRACTICES PROPERLY DISMISSED (FIRST DEPT))/FRAUD (THE ACTUAL DIMENSIONS OF THE COOPERATIVE APARTMENT WERE SMALLER THAN THE DIMENSIONS DESCRIBED IN THE LISTING, THE LISTING COULD NOT BE DEEMED INCORPORATED BY REFERENCE INTO THE PURCHASE AGREEMENT, THE COMPLAINT ALLEGING BREACH OF CONTRACT, FRAUD AND DECEPTIVE BUSINESS PRACTICES PROPERLY DISMISSED (FIRST DEPT))/CONSUMER LAW (THE ACTUAL DIMENSIONS OF THE COOPERATIVE APARTMENT WERE SMALLER THAN THE DIMENSIONS DESCRIBED IN THE LISTING, THE LISTING COULD NOT BE DEEMED INCORPORATED BY REFERENCE INTO THE PURCHASE AGREEMENT, THE COMPLAINT ALLEGING BREACH OF CONTRACT, FRAUD AND DECEPTIVE BUSINESS PRACTICES PROPERLY DISMISSED (FIRST DEPT))/PURCHASE AGREEMENTS (COOPERATIVES, THE ACTUAL DIMENSIONS OF THE COOPERATIVE APARTMENT WERE SMALLER THAN THE DIMENSIONS DESCRIBED IN THE LISTING, THE LISTING COULD NOT BE DEEMED INCORPORATED BY REFERENCE INTO THE PURCHASE AGREEMENT, THE COMPLAINT ALLEGING BREACH OF CONTRACT, FRAUD AND DECEPTIVE BUSINESS PRACTICES PROPERLY DISMISSED (FIRST DEPT))/LISTING (REAL ESTATE, THE ACTUAL DIMENSIONS OF THE COOPERATIVE APARTMENT WERE SMALLER THAN THE DIMENSIONS DESCRIBED IN THE LISTING, THE LISTING COULD NOT BE DEEMED INCORPORATED BY REFERENCE INTO THE PURCHASE AGREEMENT, THE COMPLAINT ALLEGING BREACH OF CONTRACT, FRAUD AND DECEPTIVE BUSINESS PRACTICES PROPERLY DISMISSED (FIRST DEPT))/REAL ESTATE (LISTING, (THE ACTUAL DIMENSIONS OF THE COOPERATIVE APARTMENT WERE SMALLER THAN THE DIMENSIONS DESCRIBED IN THE LISTING, THE LISTING COULD NOT BE DEEMED INCORPORATED BY REFERENCE INTO THE PURCHASE AGREEMENT, THE COMPLAINT ALLEGING BREACH OF CONTRACT, FRAUD AND DECEPTIVE BUSINESS PRACTICES PROPERLY DISMISSED (FIRST DEPT))/COOPERATIVES (THE ACTUAL DIMENSIONS OF THE COOPERATIVE APARTMENT WERE SMALLER THAN THE DIMENSIONS DESCRIBED IN THE LISTING, THE LISTING COULD NOT BE DEEMED INCORPORATED BY REFERENCE INTO THE PURCHASE AGREEMENT, THE COMPLAINT ALLEGING BREACH OF CONTRACT, FRAUD AND DECEPTIVE BUSINESS PRACTICES PROPERLY DISMISSED (FIRST DEPT))

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NO CAUSE OF ACTION FOR BREACH OF FIDUCIARY DUTY AGAINST INDIVIDUAL COOPERATIVE BOARD MEMBERS, MEMBERS OF THE BOARD DID NOT PARTICIPATE IN A CORPORATE TORT (FIRST DEPT).

The First Department determined plaintiff shareholder in a cooperative could not bring a “breach of fiduciary duty” cause of action against individual members of the cooperative board. Plaintiff alleged her cooperative apartment was damaged by water from a greenhouse above the apartment. The first department found that that was no corporate tort for which individual members of the board could be liable:

It is well-settled that a breach of fiduciary duty claim does not lie against individual cooperative board members where there is no allegation of “individual wrongdoing by the members . . . separate and apart from their collective actions taken on behalf of the” cooperative … .  Here, the complaint does not allege that any of the individual board members committed an independent wrong that was distinct from the actions taken as a board collectively. Thus, the breach of fiduciary duty claim is not viable. …

Contrary to plaintiff’s contention, this result is entirely consistent with Fletcher v Dakota, Inc. (99 AD3d 43 [1st Dept 2012]). In Fletcher, we concluded that “although participation in a breach of contract will typically not give rise to individual director liability, the participation of an individual director in a corporation’s tort is sufficient to give rise to individual liability” (id. at 47). Thus, we declined to dismiss claims against a cooperative board director who was alleged to have participated in the cooperative’s violation of the State and City Human Rights Laws.

Here, in contrast, there is no viable corporate tort alleging breach of fiduciary duty, because a corporation owes no fiduciary duty to its shareholders … . Thus, in the absence of a corporate tort in which the individual board members could have participated, the breach of fiduciary duty claim as against them was properly dismissed. Indeed, Fletcher made this very point by dismissing the breach of fiduciary duty cause of action against an individual board director, while at the same time sustaining Human Rights Law claims against him. Hersh v One Fifth Ave. Apt. Corp., 2018 NY Slip Op 05522, First Dept 7-26-18

FIDUCIARY DUTY, BREACH OF (COOPERATIVES, NO CAUSE OF ACTION FOR BREACH OF FIDUCIARY DUTY AGAINST INDIVIDUAL COOPERATIVE BOARD MEMBERS, MEMBERS OF THE BOARD DID NOT PARTICIPATE IN A CORPORATE TORT (FIRST DEPT))/COOPERATIVES (NO CAUSE OF ACTION FOR BREACH OF FIDUCIARY DUTY AGAINST INDIVIDUAL COOPERATIVE BOARD MEMBERS, MEMBERS OF THE BOARD DID NOT PARTICIPATE IN A CORPORATE TORT (FIRST DEPT))/CORPORATION LAW (COOPERATIVES,  NO CAUSE OF ACTION FOR BREACH OF FIDUCIARY DUTY AGAINST INDIVIDUAL COOPERATIVE BOARD MEMBERS, MEMBERS OF THE BOARD DID NOT PARTICIPATE IN A CORPORATE TORT (FIRST DEPT))/NEGLIGENCE (COOPERATIVES, CORPORATE TORT,  NO CAUSE OF ACTION FOR BREACH OF FIDUCIARY DUTY AGAINST INDIVIDUAL COOPERATIVE BOARD MEMBERS, MEMBERS OF THE BOARD DID NOT PARTICIPATE IN A CORPORATE TORT (FIRST DEPT))

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CONTINUING WRONG DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS BREACH OF CONTRACT AND BREACH OF WARRANTY OF HABITABILITY ACTION BASED UPON THE ALLEGED FAILURE TO REPAIR DAMAGE TO A COOPERATIVE APARTMENT (SECOND DEPT).

The Second Department, modifying Supreme Court, determined the continuing wrong doctrine operated to toll the statute of limitations in this breach of contract/breach of warranty of habitability action involving damage to plaintiff’s cooperative apartment during a 2004 renovation. Plaintiff alleged the damage had never been repaired and brought his action in 2016. The Second Department held that the continuing wrong doctrine tolled the statute of limitations but damages were recoverable for only the six years preceding the commencement of the action:

The continuing wrong doctrine “is usually employed where there is a series of continuing wrongs and serves to toll the running of a period of limitations to the date of the commission of the last wrongful act” … . “In contract actions, the doctrine is applied to extend the statute of limitations when the contract imposes a continuing duty on the breaching party” … . Here, the plaintiff alleged that the damage to his unit persisted and had not been repaired, and that such breach constituted a continuing breach of the defendants’ contractual duty to keep the building in good repair and to provide habitable premises … . However, where, as here, the sole remedy sought for the alleged continuing contractual breaches is monetary damages, the plaintiff’s recovery must be limited to damages incurred within the six years prior to commencement of the action … . Garron v Bristol House, Inc., 2018 NY Slip Op 04533, Second Dept 6-20-18

​CONTRACT LAW (CONTINUING WRONG DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS BREACH OF CONTRACT AND BREACH OF WARRANTY OF HABITABILITY ACTION BASED UPON THE ALLEGED FAILURE TO REPAIR DAMAGE TO A COOPERATIVE APARTMENT (SECOND DEPT))/CIVIL PROCEDURE (STATUTE OF LIMITATIONS, CONTINUING WRONG DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS BREACH OF CONTRACT AND BREACH OF WARRANTY OF HABITABILITY ACTION BASED UPON THE ALLEGED FAILURE TO REPAIR DAMAGE TO A COOPERATIVE APARTMENT (SECOND DEPT))/STATUTE OF LIMITATIONS (CONTINUING WRONG DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS BREACH OF CONTRACT AND BREACH OF WARRANTY OF HABITABILITY ACTION BASED UPON THE ALLEGED FAILURE TO REPAIR DAMAGE TO A COOPERATIVE APARTMENT (SECOND DEPT))/COOPERATIVES (CONTINUING WRONG DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS BREACH OF CONTRACT AND BREACH OF WARRANTY OF HABITABILITY ACTION BASED UPON THE ALLEGED FAILURE TO REPAIR DAMAGE TO A COOPERATIVE APARTMENT (SECOND DEPT))/HABITABILITY, WARRANTY OF  (CONTINUING WRONG DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS BREACH OF CONTRACT AND BREACH OF WARRANTY OF HABITABILITY ACTION BASED UPON THE ALLEGED FAILURE TO REPAIR DAMAGE TO A COOPERATIVE APARTMENT (SECOND DEPT))

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WHOLLY ARBITRARY DECISION BY COOPERATIVE BOARD TO RESCIND PLAINTIFF’S PURCHASE CONTRACT NOT SHIELDED BY THE BUSINESS JUDGMENT RULE (FIRST DEPT).

The First Department determined the cooperative board’s rescission of plaintiff’s purchase contract was wholly arbitrary and was not shielded by the business judgment rule:

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Plaintiffs’ application to purchase a unit in defendants’ cooperative residential complex was approved by defendant Board of Directors, and then rescinded two weeks later, based upon a Board member’s erroneous report that plaintiff Richard Kallop told her he did not intend to reside in the complex, as required by the purchase contract. Plaintiffs filed a complaint seeking, inter alia, to compel defendants to permit the sale to go forward. After defendants filed their answer, plaintiffs, by order to show cause, sought an order permitting the sale to close. An evidentiary hearing was held, at which the reporting Board member’s testimony revealed that Richard Kallop had not, as she claimed, informed her he intended to reside outside the cooperative complex. For his part, Richard testified that it had always been his plan to reside in the cooperative unit with his elderly mother, co-plaintiff Joan Kallop.

Under these facts, we conclude that defendants’ decision to rescind its approval of plaintiffs’ purchase application, being without any basis in reason and without regard to the facts, was wholly arbitrary, and thus not entitled to the protections generally provided to cooperative boards by the business judgment rule … . Kallop v Board of Directors for Edgewater Park Owners’ Coop. Inc., 2017 NY Slip Op 08174, First Dept 11-21-17

 

COOPERATIVES (WHOLLY ARBITRARY DECISION BY COOPERATIVE BOARD TO RESCIND PLAINTIFF’S PURCHASE CONTRACT NOT SHIELDED BY THE BUSINESS JUDGMENT RULE (FIRST DEPT))/BUSINESS JUDGMENT RULE (COOPERATIVES, WHOLLY ARBITRARY DECISION BY COOPERATIVE BOARD TO RESCIND PLAINTIFF’S PURCHASE CONTRACT NOT SHIELDED BY THE BUSINESS JUDGMENT RULE (FIRST DEPT))

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COOPERATIVE BOARD’S DETERMINATION TO WAIVE THE CONSENT REQUIREMENT FOR THE CONSTRUCTION OF A SECOND-FLOOR TERRACE WAS NOT JUSTIFIED BY THE BUSINESS JUDGMENT RULE, THE BOARD’S RULING IS A PROPER SUBJECT OF AN ARTICLE 78 ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the cooperative board should not have given the owner of a second-floor cooperative apartment (Haffey) permission to construct a second floor terrace without the consent of the investor-owner of the first-floor cooperative apartment. The cooperative’s guidelines, which can be waived, required the first-floor owner’s consent to the construction of a second-floor terrace. The board’s decision singled out investor-owners for different treatment and cannot be justified under the business judgment rule. The court noted the board’s determination is properly the subject of an Article 78 proceeding:

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… [In] “the context of cooperative dwellings, the business judgment rule provides that a court should defer to a cooperative board’s determination so long as the board acts for the purposes of the cooperative, within the scope of its authority and in good faith'” … . “To trigger further judicial scrutiny, an aggrieved shareholder-tenant must make a showing that the board acted (1) outside the scope of its authority, (2) in a way that did not legitimately further the corporate purpose or (3) in bad faith”… . “[T]he broad powers of cooperative governance carry the potential for abuse when a board singles out a person for harmful treatment or engages in unlawful discrimination, vendetta, arbitrary decision making and favoritism” … .

… [T]he board’s determination to dispense with the consent requirement and allow Haffey to erect the subject terrace without the petitioner’s consent was not protected by the business judgment rule. By dispensing with the petitioner’s consent, and, more generally, the consent of first-floor shareholders-tenants who do not reside in the building, the board deliberately singled out the petitioner, as well as tenant-shareholders who do not reside on the premises, for harmful treatment and engaged in favoritism toward tenants-shareholders who resided on the premises. As such, the petitioner established that the board’s determination to dispense with his consent did not legitimately further the corporate purpose and was made in bad faith … . Matter of Dicker v Glen Oaks Vil. Owners, Inc., 2017 NY Slip Op 06645, Second Dept 9-27-17

 

COOPERATIVES (COOPERATIVE BOARD’S DETERMINATION TO WAIVE THE CONSENT REQUIREMENT FOR THE CONSTRUCTION OF A SECOND-FLOOR TERRACE WAS NOT JUSTIFIED BY THE BUSINESS JUDGMENT RULE, THE BOARD’S RULING IS A PROPER SUBJECT OF AN ARTICLE 78 ACTION (SECOND DEPT))/CIVIL PROCEDURE (ARTICLE 78, COOPERATIVE BOARD’S DETERMINATION TO WAIVE THE CONSENT REQUIREMENT FOR THE CONSTRUCTION OF A SECOND-FLOOR TERRACE WAS NOT JUSTIFIED BY THE BUSINESS JUDGMENT RULE, THE BOARD’S RULING IS A PROPER SUBJECT OF AN ARTICLE 78 ACTION (SECOND DEPT))/BUSINESS JUDGMENT RULE (COOPERATIVE BOARD’S DETERMINATION TO WAIVE THE CONSENT REQUIREMENT FOR THE CONSTRUCTION OF A SECOND-FLOOR TERRACE WAS NOT JUSTIFIED BY THE BUSINESS JUDGMENT RULE, THE BOARD’S RULING IS A PROPER SUBJECT OF AN ARTICLE 78 ACTION (SECOND DEPT))

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