440 East 62nd St. Owners Corp. v. 440 East 62nd Street Associates, L.P.
Court: Appellate Division of the Supreme Court of the State of New York; July 6, 1995; New York; State Appellate Court
The Supreme Court of New York County, presided over by Justice Diane Lebedeff, issued an order on July 7, 1994, denying the plaintiff's motion for a preliminary injunction that sought to prevent the defendants from placing individuals in occupancy of cooperative apartments associated with shares owned by defendant Associates. The court also denied the defendants' cross motion to dismiss the complaint. The ruling was unanimously affirmed without costs. The court found the relevant documents ambiguous regarding whether defendant Associates was intended as a purchaser of unsold shares, and this ambiguity was not clarified by the extrinsic evidence presented by the parties. After reviewing the merits and equities involved, the court declined to overturn the IAS Court's discretionary decision against granting the preliminary injunction. Defendant Brumer attempted to cross-appeal the denial of the motion to dismiss the complaint against him, which included a claim of breach of fiduciary duty. The court noted that Brumer did not present this argument before the IAS Court, and therefore, it should not be considered for the first time on appeal. Additionally, the plaintiff's claim for dispositive relief based on the assertion that Associates is not a natural person was also raised for the first time on appeal, specifically in the plaintiff's reply brief, and the court found this argument to be without merit. The decision was concurred by Justices Sullivan, Ellerin, Wallach, Williams, and Mazzarelli.