MATTER OF MADISON v. STRIGGLES

The IAS Court correctly determined that paragraph 15 of the first amendment to the offering plan, which provides, in pertinent part, that the "Sponsor will vote its shares so that its votes and those of other holders of Unsold Shares will not elect a majority of the Board of Directors", does not prohibit the sponsor from combining her votes with those of other resident shareholders, who are not holders of unsold shares, to elect three or more members of the five-member Board of Directors. To hold otherwise would deprive the sponsor of her right to vote all of her shares, a result that can be accomplished only through a provision in the certificate of incorporation (Business Corporation Law § 612 [a]; Yu v. Linton, 68 A.D.2d 856; see, Rego Park Gardens Assocs. v. Rego Park Gardens Owners, 174 A.D.2d 337, lv denied 78 N.Y.2d 859). We have considered petitioners' remaining contentions and find them to be without merit.

Concur — Rosenberger, J.P., Wallach, Kupferman, Williams and Mazzarelli, JJ.