Steven Sladkus in Board Operations on November 29, 2011
The plaintiffs, who own an apartment in the building, sought to undertake a significant renovation that required, among other things, the removal of exterior walls, the relocation of certain utility pipes and the incorporation of space owned by the co-op. Because of the scale of the proposed alterations, the review process continued over the course of several years and involved several changes and revisions.
Bringing Down the House?
The co-op board was concerned that certain aspects of the project not compromise the structural integrity of the building. Eventually, an aspect of the project was not approved, the board contending that it posed a risk of shutting essential building services if something went wrong. In addition, the parties were unable to agree to a monetary value for additional common-area space that the shareholders sought to incorporate into their apartment.
The shareholders sued, alleging, among other things, that the cooperative breached the proprietary lease by unreasonably withholding approval of the their alteration plans. They also sued the four individual directors, claiming that the directors breached their fiduciary duties to the plaintiffs in not approving the plans.
If a board member holds a
grudge, or just doesn't
want alternations near
his own apartment, that
can give rise to a claim.
In dismissing the case against the individual directors, the court explained that acts and determinations of individual directors of a corporation, including those of a cooperative corporation, are generally shielded from judicial review by the Business Judgment Rule (BJR). In essence, this rule serves to prevent directors from being discouraged from taking actions that are in the best interest of the corporation and its shareholders for fear of personal liability.
To succeed in showing that a board member's actions fall outside the BJR's protections, a plaintiff must assert particular allegations. These include demonstrations that the directors acted in bad faith or with a discriminatory purpose. The court found that the shareholders had not sufficiently proved that allegation. It thus applied the Business Judgment Rule and granted the motion to dismiss.
COMMENT The lesson to be learned here is that when a co-op board is deciding whether to approve or reject a proposed alteration to an apartment in their building, they should not fear being held personally accountable for the outcome of that determination. That is, so long as they act and conduct themselves strictly as directors, not engaging in independent action in their personal capacities.
New York law tries to encourage shareholders and unit-owners to serve as board members in order to facilitate the successful operation of the building. Thus, the law precludes a court from questioning the acts and conduct of individual board members that are undertaken for the common interest of the co-op or condo, even though the outcome may reveal that the board acted "unwise[ly] or inexpedient[ly]."
Often the personal interests of individual board members will overlap with those of the building community as a whole, such as where a major renovation might disrupt or risk the safety of the community in general. In such instances, conduct by board members predicated on the general well-being of the building's tenants is proper.
When Board Members Hold Grudges
But at times the board member may have some personal, not generally applicable, feeling about the subject: The board member may not particularly like the shareholder, or the apartment to be renovated may be near the board member's apartment, creating a potential personal inconvenience to the board member.
Situations like that can give rise to the claim that the board member is not acting as a board member, but independently, for a non-corporate reason. Board members should scrupulously filter out of their decision-making all considerations that may be self-serving, focusing solely on what is best for the co-op/condo and the other residents.
Steven Sladkus is a partner at Wolf Haldenstein Adler Freeman & Herz.
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