Estate of Del Terzo v. 33 Fifth Avenue Owners

Estate of Del Terzo v. 33 Fifth Avenue Owners
Supreme Court of the State of New York, Appellate Term, First Department, February 11, 2016

Brothers Michael Del Terzo and Robert Del Terzo (together, the “Del Terzos”) inherited the shares to their deceased mother’s cooperative apartment and filed a joint application to have the shares transferred to them. Although Michael, a Pennsylvania resident, had enough income to pay the expenses, Robert did not. In their transfer application, Robert represented that he would pay the expenses on the apartment but that Michael would guarantee the payments. The apartment corporation’s Board of Directors (the “Board”) denied the transfer application on the grounds that Michael, as one of the applicants was not financially responsible as a potential shareholder. The Del Terzos commenced an action against the apartment corporation alleging that the Board breached the proprietary lease by unreasonably withholding its consent to the transfer. Both sides moved for summary judgement.

In granting summary judgement in favor of the Del Terzos, the trail court held that the Board acted unreasonably under the propriety lease in rejecting the joint application and that since the brothers were co-applicants, the finances should have been considered together with both brothers being jointly and severally liable for the maintenance and other charges. The apartment corporation appealed the trail court’s decision.

The Appellate Division affirmed and held that the Board’s reliance on Robert’s finances as a reason to deny the application was improper. The Appellate Division further held that “by failing to consider the joint application as whole , refusing to consider Michael’s offer to provide further guarantee of payment, and requiring  that each co-applicant be individually financially qualified to meet the carrying expenses of the apartment, even though Michael alone, can easily afford them, defendant unreasonably withheld its consent to the transfer.” The Appellate Division also held that when, such as here, the language of the proprietary lease states that consent shall not unreasonably be withheld to an assignment of the lease and shares to a financially responsible member of the Lessee’s family, the “reasonableness” standard and not the business judgement rule applies.