1 No. 101: George Kralik, et al. v. Corp.

1 No. 101
George Kralik, et al.,
Appellants,
v.
239 East 79th Street Owners Corp.,
Respondent.

2005 NY Int. 101

June 16, 2005

This opinion is uncorrected and subject to revision before publication in the New York Reports.

Thomas P. Kerrigan, for appellants.
David L. Berkey, for respondent.
Eliot Spitzer, Attorney General of the State of New York, amicus curiæ. READ, J.: Defendant owns the building located at 239 East 79th Street in Manhattan, which was converted to cooperative ownership in 1983. This appeal stems from a longstanding dispute over the rights of plaintiffs George and Sara Kralik as proprietary lessees and owners of the shares of the corporation purchased from the cooperative's sponsor as unsold shares. We conclude that whether plaintiffs are holders of unsold shares should be determined solely by applying ordinary contract principles to interpret the terms of the documents defining their contractual relationship with the cooperative corporation.
I.
Plaintiffs became the proprietary lessees of Apartment 16E on May 16, 1985 by an Assignment of Proprietary Lease from the cooperative's sponsor. According to plaintiffs, they purchased Apartment 16E for investment purposes,[1] understanding that they were holders of unsold shares exempt from some of the restrictions applicable to residential tenants -- most relevantly, a restriction on sublets without approval or fee. Consistent with this status, plaintiffs apparently sublet Apartment 16E from June 1, 1986 through May 31, 1988 without approval of the cooperative's Board of Directors or payment of a sublet fee. In June 1988, however, the Board insisted that plaintiffs pay a sublet fee "under threat of exclusion" of their second subtenant. Plaintiffs paid this fee and another fee in 1989 "under duress," and then stopped paying. In 1992, plaintiffs received a notice of default from the Board, which threatened lease termination.
After a six-year standoff, in 1998 plaintiffs acted to resolve their dispute with the Board by commencing this lawsuit. Plaintiffs asked for a declaration that they were holders of unsold shares and therefore entitled to sublet Apartment 16E without obtaining the Board's consent or paying a sublet fee. They also sought damages for breach of fiduciary duty and lost rental income allegedly caused by defendant's interference with their right to sublet.
After issue was joined, defendant moved for summary judgment on the ground that, as a matter of law, plaintiffs were not holders. Specifically, defendant claimed that this was so because plaintiffs failed to comply with various requirements of 13 NYCRR Part 18 ("Occupied Cooperatives"). Defendant did not dispute that plaintiffs never intended to occupy and never actually resided in Apartment 16E.
Supreme Court granted defendant summary judgment and declared that plaintiffs were not holders because neither "they nor the sponsor complied with a number of . . . prerequisites for acquiring that status," including 13 NYCRR 18.3 (w) (3) and (4) (sponsor must guarantee payment of all maintenance charges and assessments and make certain financial representations with respect to unsold shares) and 13 NYCRR 18.3 (w) (11) (holder must amend the cooperative's offering plan to provide specified information). Supreme Court cited Pacella v 107 W. 25th St. Corp., 271 AD2d 342 (1st Dept 2000) and Gorbatov v Gardens 75th St. Owners Corp., 247 AD2d 440 (2d Dept 1998) to support the proposition underpinning its holding _- that plaintiffs were not holders, regardless of their rights under the cooperative's governing documents, unless they also complied with regulations promulgated by the Attorney General under article 23-A of the General Business Law (the "Martin Act") and codified at 13 NYCRR Part 18.
The Appellate Division affirmed, holding that, "as a matter of law," plaintiffs never became holders (4 AD3d 144 [1st Dept 2004]). The court determined that, contrary to plaintiffs' contentions, they were not holders merely by virtue of their compliance with section 38 (a) of the proprietary lease. "[S]uch a provision, alone, 'does not create rights . . . it merely extinguishes them '" ( id. [quoting Craig v Riverview E. Owners, 156 AD2d 157, 158 (1st Dept 1989)]). "There must also be compliance with regulatory requirements pertaining to such holders" ( id. [citing Pacella]), some of which plaintiffs concededly did not fulfill. We subsequently granted leave to appeal, and now reverse.
II.
The Martin Act governs the offer and sale of securities in and from New York State, including securities representing "participation interests" in cooperative apartment buildings. The Attorney General bears sole responsibility for implementing and enforcing the Martin Act, which grants both regulatory and remedial powers aimed at detecting, preventing and stopping fraudulent securities practices ( see CPC Intl v McKesson Corp., , 70 NY2d 268 [1987]). According to the Attorney General, who filed an amicus brief in this case, his duties under the Martin Act with respect to cooperative apartments are two-fold. First, he reviews the disclosures required by General Business Law § 352-e for sufficiency. Second, he may investigate and initiate civil or criminal actions where he believes there is fraud ( see §§ 352, 352-c, 353, 354).
To carry out his responsibilities under section 352-e, the Attorney General has promulgated 13 NYCRR Part 18 ( see General Business Law § 352-e [6][b] [empowering Attorney General to "adopt, promulgate, amend and rescind suitable rules and regulations" relating generally to General Business Law § 352-e]). Because section 352-e is "a disclosure statute, designed to protect the public from fraudulent exploitation in the sale of real estate securities" ( Council for Owner Occupied Hous. v Abrams, , 72 NY2d 553, 557 [1988]), Part 18 is similarly limited and only applies to disclosures made in a public offering. Thus, Part 18 does not apply to plaintiffs unless and until they offer Apartment 16E's shares for sale to the public, and, in that event, only the Attorney General may enforce Part 18's requirements ( see Vermeer Owners v Guterman, , 78 NY2d 1114 [1991] [no private cause of action under General Business Law § 352-e]).
In short, the terms of the controlling documents _- not Part 18 _- determine whether plaintiffs are holders of unsold shares.[2] Plaintiffs' status must be decided by applying the usual rules of contract interpretation to those documents ( see e.g. Fe Bland v Two Trees Mgt. Co., , 66 NY2d 556, 563 [1985] ["The relationship between the shareholder/lessees of a cooperative corporation and the corporation is determined by the certificate of incorporation, the corporation's bylaws and the proprietary lease under which a particular apartment is occupied, subject, of course to applicable statutory and decisional law"]).
Accordingly, the order of the Appellate Division should be reversed, without costs, and the case remitted to Supreme Court for further proceedings in accordance with this Opinion.

Footnotes

1 Plaintiffs are also proprietary lessees and shareholders of Apartments 11N (their residence) and 1A (where plaintiff George Kralik conducts his dental practice).

2 Craig, Gorbatov, Pacella and any other decisions relying on them are incorrect to the extent they suggest that the requirements of 13 NYCRR Part 18 apply where no shares are offered for sale.