Recitation, as required by CPLR § 2219 [a] of the papers considered in the review of this (these) motion(s):

PapersNumbered

Motion Seq. No. 001

Def n/m 3211(a)(1), 3211(c), 3212 w/CM affirm, DFC affid, exhs 1

Def MR affid 2

Pltf opp w/ TDB affirm 3

Def reply w/ DFC affid, exhs 4

Motion Seq. No. 002

Pltf amended n/m 3124, 3211(d), 3212(f)1

Def opp & supp w/ TDB affirm, exhs 2

[*2]————————— ;————————————
51;————————————& #151;———————————— ———————————

Gische, J.S.C.:

Upon the foregoing papers, the decision and order of the court is as follows:

Plaintiff, William Carroll ("Carroll" or "Plaintiff") has commenced this action, individually, and derivatively on behalf of The Charles House Condominium ("CHC"), sounding in breach of the duty of loyalty and nuisance, against defendants CHC and Mahir Radoniqi ("Radoniqi" sometimes "super"), CHC's superintendent. Now, before the court is CHC's motion pursuant to CPLR §3211(a)(1), to dismiss plaintiff's first cause of action, or in the alternative, for summary judgment pursuant to CPLR §3211(c) and/or CPLR §3212. Plaintiff opposes the motion and separately moves ^[FN1] pursuant to CPLR §§3124, 3211(d) and 3212(f), to compel discovery from defendants Radoniqi and CHC. Issue has been joined and the note of issue has not yet been filed. Summary judgment relief is, therefore, available. CPLR § 3212; Myung Chun v. North American Mortgage Co., 285 AD2d 42 [1st Dept. 2001].

Plaintiff is an owner and shareholder of CHC and has filed this suit seeking to compel CHC's Board of Managers ("Board") to commence legal action against Radoniqi, as its first cause of action, and as a second cause of action, against Radoniqi individually. The court now considers whether CHC is entitled to dismissal or summary judgment on the first cause of action against it. Radoniqi supports CHC's motion..

Plaintiff argues that although Radoniqi is required to provide his full and undivided services to CHC during business hours, he failed to do so, thereby breaching his duty of loyalty to CHC, as its employee and agent. Plaintiff alleges five instances of purported misconduct by the super: (1) unauthorized renovations in Unit 3C; (2) unauthorized renovations in Unit 10C; (3) a request for a window that was being removed for Unit 5H; (4) unauthorized renovation of Unit 12C on "company time"; and (5) permitting his brother to reside with him in the super's apartment.

Furthermore, Plaintiff raises concerns that Radoniqi's alleged misconduct may, in the future, subject CHC to fines and penalties. For these alleged misdeeds, Plaintiff's derivative claim demands that: (1) Radoniqi's employment be terminated; (2) he be evicted from his apartment; (3) Radoniqi be ordered to repay his salary and the value of his apartment during the period of his alleged misconduct; and (4) Radoniqi disgorge and pay to the Condominium any profit he may have received from the performance of the unauthorized renovations. Plaintiff also demands that Radoniqi reimburse Plaintiff's legal fees in bringing this action.

CHC argues that Plaintiff's demands are an improper intrusion into a matter of employee discipline that are solely within the Board's province. The Plaintiff relies on Article II of CHC's By-Laws, vesting the Board with the discretion to make all decisions concerning the management of the condominium. Section 2.2 (A) provides: "The Condominium Board shall have all of the powers and duties necessary for, or incidental to, the administration of the affairs of the Condominium." As well, Section 2.4(A)(xviii) [*3]vests with the Board the power to "bring or defend against any proceeding that may be instituted on behalf of or against the Unit Owners."

CHC further argues that the first cause of action should be dismissed because the Board reviewed the derivative claim asserted by Plaintiff and has concluded that it is not in the best interests of the Condominium to pursue the claim. CHC claims, through the affidavit of the current President of the Condominium, Diane F. Cornell ("Cornell"), that the Board conducted a thorough investigation into the conduct alleged to underlie Plaintiff's derivative claim and took action that the Board, in the exercise of its business judgment, deemed appropriate. CHC argues that under New York's business judgment rule, the Court should defer to the Board's exercise of its judgment and dismiss Plaintiff s first cause of action.

Plaintiff opposes the motion arguing that when Carroll brought Radoniqi's alleged misdeeds to the Board's attention and demanded that the Board initiate legal action against Radoniqi, they did nothing. Plaintiff claims that although the Board purported to investigate Radoniqi's actions, it actually "looked the other way." Specifically, that the investigation was a "sham" because the Board has refused to provide to Plaintiff any documentation of the investigation. Plaintiff further argues that nothing in the resolution or papers submitted by the Condominium in support of the present motion provides any factual support for the Board's determination, that Radoniqi keep his job.

Plaintiff further claims that in this case, the business judgment rule does not insulate the Board's determination, because it was a "sham" investigation. Furthermore, because evidence pertaining to the investigation made by the Board is in its exclusive possession, custody, and control, the production of such evidence is necessary before any determination by the Court may be reached regarding the applicability of the business judgment rule. Therefore, the Plaintiff requests that the CHC's motion should be denied or deferred pending discovery.

CHC replies that Plaintiff's opposition to the Condominium's motion is insufficient to defeat the protections afforded by the business judgment rule to the Board's determination to terminate Plaintiff's derivative action. CHC claims that the Cornell affidavits and exhibits attached thereto provide a complete record of the Board's investigation into Plaintiff's allegations. The investigations consisted of: (1) meeting with Plaintiff to allow him to present all of the facts known to him about his allegations against Mr. Radoniqi; (2) reviewing additional correspondence from Plaintiff and his counsel; (3) requesting that Plaintiff supply any additional information in his possession; (4) interviewing the owner of Unit 5H; (5) interviewing the owner of Unit 12C; (6) taking written statements from the owners of Units 3C and l0C; and (7) consulting with the CHC's general counsel. CHC claims that the record proves that the investigation was conducted by disinterested members of the Board and was performed with the exercise of due care.

CHC further claims that the Board has been fully responsive to Plaintiff's demands and that the results of their investigations has proved to the Board's satisfaction that three out of four of the Plaintiff's allegations were either unsubstantiated or simply not true. The facts revealed by the investigation informed the Board's decision as to what disciplinary action to take against Radoniqi concerning the fourth allegation. CHC claims that the investigation and facts found, taken together with the advice of counsel, formed the basis of the Board's resolution that the prosecution of Plaintiff's derivative claim against Radoniqi [*4]was not in the best interest of the Condominium.

"CPLR § 3211(a)(1) was intended only as a backup when the defendant has a document which seems all by itself to defeat the plaintiff's claim but eludes any of the more specific dismissal grounds listed in CPLR 3211(a)." Siegel, Practice Commentaries, McKinney's Cons. Laws of NY, CPLR C3211:10. Therefore, a motion to dismiss may be granted on documentary evidence so long as the documents alone "definitively dispose of plaintiff's claim" (Blonder & Co., Inc. v. Citibank, N.A., 28 AD3d 180 [1st Dept 2006]; Bronxville Knolls Inc. v. Webster Town Center Partnership, 221 AD2d 248 [1st Dept. 1995]). The movant may not rely on affidavits or depositions to support a motion to dismiss pursuant to CPLR § 3211(a)(1) (Fontanetta v. John Doe 1, 73 AD3d 78 [2nd Dept. 2010]; see generally Demas v. 325 West End Ave. Corp., 127 AD2d 476 [1st Dept 1987]).

Here, the moving defendant, CHC, bases its arguments squarely upon the following documents as evidence to support its motion to dismiss: (A) the affidavit of Diane F. Cornell ("Cornell"), President of the CHC and a member of its Board of Managers ("Board"); (B) verified complaint; (C) Article II of CHC Bylaws; (D) minutes of the Board of CHC, dated 9/15/10, with appended bylaws; (E) verified answer; (F) minutes of the Board of CHC, dated 6/17/08; (G) minutes of the Board of CHC, dated 6/26/08; (H) minutes of the Board of CHC, dated 4/17/09; (I) letter of complaint, dated 5/6/09; (J) minutes of the Board of CHC, dated 5/14/09; (K) letter from Gary Widlitz, apartment 10C; (L) email from Roby Mesrie; (M) letter from Radoniqi refuting illegal construction in apartment 3C (Roby Mesrie); (N) letter from Radoniqi refuting illegal construction in apartment 10C (Gary Widlitz). Even though these documents and other paper proof are often referred to as "documentary" in other contexts, they are not "documentary" under CPLR § 3211(a)(1) standard. Fontanetta v. John Doe 1, 73 AD3d 78 [2nd Dept. 2010] (Documents that can be characterized at best as letters, summaries, opinions, and/or conclusions of the defendants do not pose an "essentially undeniable" defense and therefore do not qualify as "documentary" under CPLR § 3211[a][1]). Therefore, the defendant's motion for CPLR § 3211(a)(1) relief is denied.

A motion to dismiss may be converted to one for summary judgment, if the issues could be decided, summarily, at that juncture, so long as the court informs the parties. CPLR § 3211(c); Gifts of the Orient v. Linden Country Club, 89 AD2d 508 (1st Dept. 1982). Here, the motion pursuant to CPLR § 3211(c) is redundant because defendants have answered and have moved for summary judgment under CPLR § 3212, placing the merits of the case before the court.

CPLR § 3212 relief is granted.

On a motion for summary judgment, the proponent bears the initial burden of setting forth evidentiary facts to prove a prima facie case that would entitle it to judgment in its favor, without the need for a trial. CPLR § 3212; Winegrad v. NYU Medical Center, 64 NY2d 851 (1985); Zuckerman v. City of New York, 49 NY2d 557, 562 (1980). Only if it meets this burden, will it then shift to the party opposing summary judgment who must then establish the existence of material issues of fact, through evidentiary proof in admissible form, that would require a trial of this action. Zuckerman v. City of New York, supra. If the proponent fails to make out its prima facie case for summary judgment, however, then its [*5]motion must be denied, regardless of the sufficiency of the opposing papers. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986); Ayotte v. Gervasio, 81 NY2d 1062 (1993).

Granting a motion for summary judgment is the functional equivalent of a trial, therefore it is a drastic remedy that should not be granted where there is any doubt as to the existence of a triable issue. Rotuba Extruders v. Ceppos, 46 NY2d 223 (1977). The court's function on these motions is limited to "issue finding," not "issue determination." Sillman v. Twentieth Century Fox Film , 3 NY2d 395 (1957). When issues of law are raised in connection with a motion for summary judgment, the court may and should resolve them without the need for a testimonial hearing. Hindes v. Weisz, 303 AD2d 459 (2d Dept. 2003).

By their very nature, shareholder derivative actions infringe upon the managerial discretion of corporate boards. "As with other questions of corporate policy and management, the decision whether and to what extent to explore and prosecute such [derivative] claims lies within the judgment and control of the corporation's board of directors" Auerbach v. Bennett, 47 NY2d 619, 631 (1979).

Decisions made by the board of managers of a residential condominium are reviewed according to the business judgment rule (Matter of Levandusky v. One Fifth Ave. Apt. Corp., 75 NY2d 530 [1990]). Accordingly, courts must defer to good faith decisions made by a board of managers. Id.; see Auerbach v. Bennett, 47 NY2d 619, 631 [1979]) Thus, absent a showing of breach of fiduciary duty to the [condominium], judicial inquiry into the actions of corporate directors is prohibited, even though the results show that what the directors did was unwise or inexpedient (Jones v. Surrey Coop. Apts., 263 AD2d 33, 36 [1st Dept. 1999]). Inquiry into claims of fraud and self-dealing are permitted only when a factual basis exists to support such claims (Id. at 36). It is the plaintiff who bears the burden at trial of making the requisite showing, that the directors breached their fiduciary duties (Id. at 36-37). "To trigger further judicial scrutiny, an aggrieved [unit owner] 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 " (Pelton v. 77 Park Ave. Condominium, 38 AD3d 1, 8-9 [2006] [internal citations omitted]). Once the movant has met its burden, a "shadowy semblance" of a triable issue will not defeat a motion for summary judgment (S.J. Capelin v. Globe, 34 NY2d 338 [1974]). The allegation that a decision of the board was affected due to self-interest of one or more of the directors must state with specificity a claim for breach of fiduciary duty. (CPLR § 3016[b], Pelton v. 77 Park Ave. Condominium, 38 AD3d 1, 11 [1st Dept. 2006], Peacock v. Herald Square Loft Corp., 67 A.D.442 [1st Dept. 2009])

The Board has established that it thoroughly investigated the issues surrounding the renovation of Apartment 12C at its June 17, 2008 meeting, one year before the Plaintiff presented his allegations to the Board. After its investigation, the Board elected not to terminate Radoniqi, citing the quality of his job performance, his knowledge of the condominium building and the difficulty of retaining another qualified superintendent to replace him. Instead, the Board opted to penalize Radoniqi financially by reducing his annual bonus for a two year period. Although the Board considered whether to pursue a legal claim against Radoniqi, it determined that litigation was not in the Condominium's best interest. In fact, Plaintiff himself was involved in the Board's investigation. Once Plaintiff brought to the board's attention that Radoniqi's brother, who was performing [*6]unauthorized construction in the building, was also living with Radoniqi in the super's apartment, the board took action to and did evict Radoniqi's brother. When Plaintiff expressed dissatisfaction with the disciplinary action taken, the Board investigated Plaintiff's claims and allegations, determining that the allegations had no merit.

In opposition to Defendant's motion, Plaintiff has not raised any factual issue about whether the Board's decisions and actions were based upon something other than the exercise of reasonable discretion. Instead, Plaintiff speculates that the Board's actions "may" have been tainted because individual members derived personal benefits by having Radoniqi renovate their apartments. Such speculation and innuendo are insufficient to defeat defendant's motion.

Once the Plaintiff filed the derivative action, the board passed a resolution to terminate the claim. This determination, based on the investigations it made prior to the present action and then upon revisiting the issue after the action was filed, all informed the Board's decision to take certain actions, including, ultimately seeking to terminate Plaintiffs derivative action. Plaintiff's allegations to the contrary are mere speculation and are insufficient to raise material issues of fact to defeat the CHC's motion for summary judgment.

Plaintiff's assertion that discovery is necessary in order to oppose CHC's motion is based on nothing more than unsubstantiated hope of discovering something relevant to his claims, and is an insufficient reason to deny the motion. The courts have consistently held that "mere hope that somehow the plaintiffs will uncover evidence that will prove their case, provides no basis, pursuant to CPLR 3212(f), for postponing a decision on a summary judgment motion." (Kennerly v. Campbell Chain Co., 133 AD2d 669, 670 [2nd Dept. 1987]; see Leonard v. Gateway II, LLC, 68 AD3d 408, 410 [1st Dept. 2009]).

Therefore, the Court defers to the Board's exercise of its business judgment and grants the CHC's motion for summary judgment in its entirety and the first cause of action is hereby severed and dismissed.

In accordance herewith, it is hereby:

ORDERED that motion sequence 001, the Charles House Condominium's motion, is granted as to summary judgment on the first Cause of Action, but is otherwise denied; and it is further

ORDERED that motion sequence 002, Plaintiff, William Carroll's motion is denied; and it is further

ORDERED that the first cause of action in the complaint is hereby severed and dismissed.

ORDERED that the remaining cause of action is set for a Preliminary Conference on January 5, 2012 at 9:30 a.m. in Part 10, 60 Centre Street, room 232.

Any requested relief not expressly addressed has nonetheless been considered and is hereby denied.

This shall constitute the decision and order of the court.

Dated:New York, New YorkSo Ordered:

October 20, 2011

[*7]

Hon. Judith J. Gische, J.S.C.