In a decision dated May 24, 2011 by Justice Sherwood, the court dismissed a petition brought by shareholders of a residential housing cooperative pursuant to BCL § 619 challenging the election of directors. The court found that dismissal was warranted under CPLR § 3211(a)(10) because the petitioners failed to notify or join the corporation which was a necessary and indispensable party, whose rights were tied to the corporate shareholders and would be prejudiced if the matter proceeded in its absence. The court rejected the petitioners’ attempt to join the corporation through an amended petition because the petitioners failed to seek leave of court before filing the amended pleading, as required under CPLR § 401. Finally, the court held that dismissal of the petition was also warranted because the petition was barred by the four month statute of limitations set forth in BCL § 619 and the petitioners could not avail themselves of the “relation back” doctrine because they never timely sought or obtained court permission to amend the petition and, therefore, did not cure their mistake in failing to join the corporation.
Lindkvist v Honest Ballot Assoc., Sup Ct, New York County, May 16, 2011, Sherwood, J, Index No. 113590/10