Jamil v. Southridge Cooperative, Section No. 4, Inc.

concur in a memorandum; Jones, J., dissents and votes to affirm the judgment in the following memorandum: I would affirm the judgment appealed from upon the opinion of Posner, J. in the court below.

OPINION OF THE COURT

Memorandum.

Judgment of the court below (93 Mise 2d 383) reversed with $30 costs and complaint dismissed.

Plaintiff instituted this action to recover the sum of $2,000 paid by him to defendant. A full and complete statement of the facts is to be found in the opinion of the court below.

A careful review of the evidence reveals that plaintiff never informed defendant, in writing, of his intention to leave the co-operative as the by-laws require. Since plaintiff did not comply with said notice provision, he could not dispose of his stock without affording defendant the first option to purchase same. Moreover, it is the opinion of this court that the "waiver of option” fee, was a valid exercise of the power of defendant’s board of directors (see Cooperative Corporations Law, § 5; Business Corporation Law, § 701; By-Laws, art V, § 2, subds [b], [d]). In view of the holding herein, that the resolution of the board of directors was valid, the complaint must be dismissed. (See Allen v Baltimore Tissue Corp., 2 NY2d 534, 542; Reifman v Berkley Co-op. Towers, Civ Ct, NY County, Jan. 31, 1975; see, also, Fromer v Clearview Gardens Corps., NYLJ, Dec. 19, 1974, p 16, col 2.)