83 A.D.2d 757 | N.Y. App. Div. | 1981
Lead Opinion
with costs to plaintiffs, in accordance with the following memorandum: At issue on this appeal from an order denying plaintiffs’ motion and defendants’ cross application for summary judgment in a declaratory judgment action is whether a New York corporation holds membership in a not-for-profit corporation. Special Term also granted plaintiffs’ motion to dismiss defendants’ third counterclaim but denied their motion to dismiss the first and second counterclaims, from which denial plaintiffs also appeal. Defendants Fisher, the owners and developers of River Island Estates, a 20-lot subdivision of land, each lot comprising three to five acres, sold one lot in December, 1975 to the plaintiffs and, thereafter, their remaining lots to the defendant Japine Development Corporation (Japine), of which they are the sole stockholders, officers and directors. The sale was subject to certain recorded covenants which placed use, set-back, construction and other restrictions on the subdivision lots and provided that each lot owner would be a member of River Island Estates Association, Inc. (Association) which was incorporated under the Not-For-Profit Corporation Law on October 24,1975. The restrictive covenants may be amended by the recording of an instrument executed by the voting members of the Association. The Association’s by-laws provide that each member shall have one vote for each subdivision lot owned by the member. In September, 1980 the defendant John E. Fisher stated that he and Japine collectively owned 15 lots in the subdivision and that under the Association’s by-laws he had 15 of the possible 20 votes which he intended to vote in favor of a resolution amending the restrictive covenants to reduce the minimum building requirements. It is conceded that Japine now holds title to 12 of the lots, having conveyed the remaining lots to various persons for residential construction. Plaintiffs, claiming that this voting power interpretation of the bylaws and proposed amendment of the restrictive covenants would be detrimental to their interests and that of other residents of the subdivision, instituted the within action seeking a declaration, among other things, that each member of the Association is only entitled to one vote in the conduct of the Association’s affairs and that Japine is ineligible for membership. Defendants’ answer contained three counterclaims alleging that plaintiffs (1) violated the construction covenant by building their residential dwelling within 100 feet of
Lead Opinion
Order unanimously modified, on the law, and, as modified, affirmed,
