McGOVERN v. WOMACK

Ordered that the judgment is affirmed, with costs.

The Supreme Court properly determined that the provision in the defendant corporation's certificate of incorporation requiring a favorable vote of a majority of shares represented at the annual meeting to amend the by-laws was valid, and that the inconsistent provision in the by-laws was invalid ( see, Business Corporation Law § 601 [c]; § 616 [a] [2]; Model, Roland Co. v. Industrial Acoustics Co., 16 N.Y.2d 703, 705; Christal v. Petry, 275 App. Div. 550, affd 301 N.Y. 562).

Under the circumstances of this case, Zion v. Kurtz ( 50 N.Y.2d 92), does not apply because the plaintiff did not submit clear and unambiguous evidence that the corporation's shareholders intended the provision in the by-laws to control ( cf., Garson v. Garson, 105 A.D.2d 726, affd sub nom. Garson v. Rapping, 66 N.Y.2d 928).

Bracken, J. P., Santucci, Altman and McGinity, JJ., concur.