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Decided on October 18, 2011
Supreme Court, New York County

401071/10
James Cannings, plaintiff pro se 400 2nd Ave, Apt 22C NY NY 10010
(212) 642-8260
Michelle P. Quinn, for defendant East Midtown Plaza Housing Co, Inc.

Gallet Dreyer & Berkey, LLP
845 Third Ave, 8th floor
NY NY 10022-6601
(2120 935-3131
Joan A. Madden, J.
Defendant East Midtown Plaza Housing Company, Inc. (the "Cooperative" or "Cooperative corporation") moves for an order pursuant to CPLR 3212 granting summary judgment dismissing the complaint, and for a money judgment in its favor for the attorney's fees incurred in the defense of this action. Plaintiff James Cannings, appearing pro se, opposes the motion.
The following facts are not disputed unless otherwise noted. Plaintiff James Cannings is the tenant and cooperative shareholder of apartment 22C in the building located at 400 Second Avenue, New York, New York, which is part of a six-building development situated between First and Second Avenues and 23rd and 25th Streets (collectively the "property" or [*2]"development"). Defendant Cooperative corporation, as the owner of the buildings, is a limited profit housing company organized under the New York State Private Housing Finance Law, which is commonly known as the Mitchell-Lama Law. As a Mitchell-Lama cooperative, defendant is subject to supervision by the New York City Department of Housing Preservation and Development ("HPD") and the United States Department of Housing and Urban Development ("HUD").
On April 1, 2004 and February 21, 2006, the New York City Housing Development Corporation ("HDC") conducted inspections of the development, and determined that the windows in the buildings were "beyond the end of their useful lives" and "strongly" recommended "total replacement." Jerrold Fox, the President of defendant Cooperative corporation, submits an affidavit stating that pursuant to the HDC reports, the Cooperative's Board of Directors (the "Board") "decided that was in the best interest of the Cooperative to replace the windows at the Property," and the "Cooperative set about engaging a vendor to perform the work and obtaining the appropriate financing." Explaining that HPD oversees this process with HUD's approval of the vendor, Fox states that "[i]n accordance with HPD regulations, bids were solicited from various vendors, and ultimately Skyline Windows was selected." He states that "[b]ecause HDC holds the underlying mortgage for the Cooperative, HDC had to approve, and did approve, the selection of Skyline Windows."
To finance the project, the Cooperative secured a loan in the amount of $5 million from Amalgamated Bank, which according to defendant was approved by HUD, HPD and HDC. Fox explains that to "repay the loan, the board voted to impose an assessment on each of the shareholders over a five-year period, which was similarly approved by HUD." Defendant submits an October 20, 2010 letter stating that HUD "has no objection to the proposed financing." Defendant also submits an October 14, 2010 letter from HUD acknowledging receipt of the "Board of Directors resolution duly adopted by a positive vote of the majority of the
shareholders at a special meeting held on July 21, 2010. The majority vote (308 positive, 154 negative) has been certified by the Board of Directors and the Honest Ballot Association. We [HUD] are therefore approving a $30.75 per share capital repairs assessment to be collected over a sixty month period."
In the meanwhile, since in or about November 2005, defendant Cooperative has been engaged in efforts to withdraw from the Mitchell-Lama program and privatize the development. Such action requires approval of two-thirds of the shareholders, and a dispute arose as to the method for counting the shareholders' votes. The Cooperative took the position that the votes should be counted on a per-share basis. HPD and the Attorney General asserted that HPD's regulations required that the votes be counted on a per-apartment basis, i.e. one vote for each shareholder. The Cooperative commenced an Article 78 proceeding seeking to compel HPD's approval of its privatization plan, and to compel the Attorney General to accept for filing, its Second Amendment to Cooperative Offering Plan. On March 9, 2010, the Hon. Emily Jane Goodman issued a decision rejecting the Cooperative's position and denying Article 78 relief. East Midtown Plaza Housing Co, Inc v. Cuomo, 2010 WL 1169622 (Sup Ct, NY Co, 2010). On appeal, the Appellate Division First Department affirmed the denial, East Midtown Plaza Housing Co, Inc v. Cuomo, 85 AD3d 485 (1st Dept 2011), determining that "[t]he court properly [*3]determined that HPD's method for counting dissolution votes, i.e., one vote per shareholder, was rational and lawful," reasoning as follows:
Petitioner's Certificate of Incorporation specified that each shareholder shall be entitled to one vote, regardless of the number of shares held by such holder, "except as otherwise provided by statute." The court properly concluded that no statutes, including Business Corporation Law

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