Louis & Abrons Foundation, Inc. v. 29 East 64th Street Corp. , 78 A.D.2d 814 ( 1980 )

Kupferman, J.,

concurs in part and dissents in part in a memorandum as follows: Inasmuch as the foundation could have been subject to a forfeiture, it by necessity had to bring this action. (See First Nat. Stores v Yellowstone Shopping Center, 21 NY2d 630, mot for rearg den 22 NY2d 827.) Accordingly, to require that it share in the payment of the co-operative’s legal fees is supererogatory, and I cannot concur in such a result. While the conclusion that the court should not substitute its “opinion for that of the Board of Directors in this highly subjective area” of determining what to do about “signs, gates, canopies and other attachments”, is justifiable, in this matter we have evidence that the cooperative was not necessarily proceeding in good faith as to which store adornments were satisfactory, but was rather using this as pressure for additional income. An examination of the photographs shows that the signs, etc., seem to be of a type which blends with others in the area on Madison Avenue. Further, the entrance for the building is on 64th Street and not in proximity with the Madison Avenue signs. Under the circumstances, I would not interfere with the determination of Trial Term on that score. Settle order.