97 A.D.2d 736 | N.Y. App. Div. | 1983
Order and judgment of the Supreme Court, New York County (Kirschenbaum, J.), entered on May 3, 1983, which denied plaintiffs-appellants’ motion for a preliminary injunction, declared that plaintiffs-appellants’ sublease violated their proprietary lease, granted defendant-respondent’s cross motion for summary judgment on its counterclaim for attorney’s fees and costs of defending this action, ordered the counterclaim severed and directed an assessment of damages, is unanimously modified, on the law and the facts, and in the exercise of discretion, to the extent of reinstating the sixth.cause of action in the complaint and awarding appellants judgment on that cause, and permanently enjoining respondent from terminating appellants’ proprietary lease on the basis of the lease violation on which this action is grounded, and otherwise affirmed, without costs. Plaintiffs Jeffrey and Miriam Zuckerman own shares allocated to a co-operative apartment in the defendant corporation’s building pursuant to a proprietary lease. Under the terms of that lease, subletting is permitted only with the express consent of the board of directors or of 65% of the lessees should the board withhold approval. The lease further provides that any consent to subletting may be subject to such conditions as the board may impose, and that consent may be withheld for any reason or for no reason. With the consent of the board, appellants sublet their apartment for a one-year period commencing on July 1,1981. When appellants sought board