Papo v. McGrail

— Order, Supreme Court, New York County (Irma Vidal Santaella, J.), entered on or about December 15, 1988, which, inter alla, denied defendants-appellants’ motion for summary judgment (CPLR 3212) without prejudice to renewal, and order of the same court, entered April 27, 1989, which, inter alla, granted defendants-appellants’ motion for reargument and renewal and adhered to its original decision entered December 15, 1988, are unanimously affirmed, without costs.

This action arises out of plaintiff’s ownership of unsold shares of Finch Apartment Corporation (Finch) and proprietary leases for cooperative apartments in certain buildings. Plaintiff and defendants-appellants were coshareholders and codirectors of Finch. As a result of alleged improper actions of defendants-appellants, plaintiff instituted three actions against defendants. The three actions were consolidated by Justice Santaella’s December 15, 1988 order. Defendants-appellants sought summary judgment pursuant to CPLR 3212 on all causes of action in the complaints.

Plaintiff’s three consolidated complaints raise issues concerning: defendants’ alleged self-dealing and waste mismanagement of Finch; defendants’ concerted actions which were allegedly intended to injure plaintiff financially; defendant McGrail’s alleged defamation of plaintiff; and defendants’ alleged attempt to terminate several of plaintiff’s proprietary leases. The record reveals no discovery has yet occurred and many genuine and material issues have yet to be resolved. Accordingly, summary disposition of plaintiffs claims is not warranted. (Rotuba Extruders v Ceppos, 46 NY2d 223 [1978].) While defendants assert that the decision of Justice McCooe, affirmed by this court in Finch Apt. Corp. v Finch Realty Co. (143 AD2d 1075 [1st Dept 1988]), disposes of the issues in the present action, it is clear that the Finch decision merely decided an issue regarding a prepayment penalty of a wraparound mortgage, and did not resolve the issues pertinent to the present controversy.

We have considered appellants’ other claims and find them to be of no merit. Accordingly, we affirm both orders appealed. Concur — Ross, J. P., Asch, Rosenberger, Smith and Rubin, JJ.