Opinion
651043/2019
09-17-2019
Robert TUCKER, Plaintiff, v. The MANHATTAN CLUB TIMESHARE ASSOCIATION, INC., Defendant.
Zimmerman Law Group (Jean-Marc Zimmerman of counsel), and Tully Rinckey PLLC (Steven Hoffberg of counsel), for plaintiff. Katsky Korins LLP (Joel S. Weiss and Haley Adams of counsel), for defendant.
Zimmerman Law Group (Jean-Marc Zimmerman of counsel), and Tully Rinckey PLLC (Steven Hoffberg of counsel), for plaintiff.
Katsky Korins LLP (Joel S. Weiss and Haley Adams of counsel), for defendant.
Gerald Lebovits, J.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 16, 20, 21, 22, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37
were read on this motion for PRELIMINARY INJUNCTION.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 62, 63, 64, 65, 66, 67, 68, 69, 70
were read on this motion for DISMISSAL.
Plaintiff Robert Tucker is a member of defendant Manhattan Club Timeshare Association, Inc. (Timeshare Association). Tucker brought this action to force the Timeshare Association to permit him to inspect and copy the Association's member list—including contact and address information for the more than 10,000 members of the Association—under Not-for-Profit Corporation Law (N-PCL) § 621 (b). Tucker now moves for a preliminary injunction (motion sequence 001). The Timeshare Association moves to dismiss (motion sequence 002). The two motions are consolidated here for disposition.
BACKGROUND
The Timeshare Association is a New York non-profit corporation. It oversees the management of the Manhattan Club, a timeshare property organized as a condominium and located in New York County. According to defendant, the condominium's sponsor is non-party Bluegreen Vacations Unlimited, Inc. (See Aff. of Joshua A. Wirshba, NYSCEF No. 24, at 4.)
The Association's members are owners of fractional timeshare interests in the Manhattan Club. These interests, in essence, allow their holders to stay at the property for a certain number of nights per year. At oral argument, counsel for the Association represented that the Association has more than 10,000 members. (See Transcript, NYSCEF No. 64, at 21.) Association members are responsible for a proportionate share of maintenance fees for the property.
A Manhattan Club timeshare interest could also provide that its holder has the right to stay at the Manhattan Club for a certain number of nights every other year, to do so every third year, or to do so on some other terms. (See NYSCEF No. 24, at 8.)
Tucker, a Massachusetts resident, is a member of the Timeshare Association. He purchased his timeshare interest in the Manhattan Club in 2009. According to the allegations of his complaint, Tucker believes that the management of the Timeshare Association and the current and former sponsors of the Manhattan Club condominium are mismanaging the Club and the Association to the detriment of the Association's members. Tucker wishes to communicate these beliefs to other members of the Association, with the aim of organizing the membership against the various practices to which he objects and the management implementing those practices.
To that end, Tucker, relying on N-PCL § 621, asked the Timeshare Association to grant him access to its list of members (which includes their address and contact information). That statute, as relevant here, grants members of non-profit corporations "the right to examine in person or by agent or attorney" the corporation's "list or record of members" and to "make extracts therefrom." ( N-PCL § 621 (b).)
The corporation may refuse such a demand unless the member seeking inspection executes an affidavit that the inspection "will not be used for a purpose which is in the interest of a business or object other than the business of the corporation." (N-PCL § 621(c).) Tucker's moving papers include a sworn representation that he will not use any inspection for a purpose other than for Association business. (Aff. of Robert Tucker, NYSCEF No. 4, at 2-3.)
The Association refused to permit Tucker to inspect and copy its member list. Instead, it offered to allow Tucker to communicate his views to the Association's membership through the Association's internal mailing procedures. Tucker and the Association deadlocked, however, over the terms on which the Association would permit Tucker to do so. Tucker therefore sued in this court to enforce his claimed inspection right.
Tucker's complaint asserts a single cause of action: that the Timeshare Association has violated N-PCL § 621 by refusing to permit him to inspect and copy the Association's member list. (See Complaint, NYSCEF No. 2, at 14-15 [ 69-73].) The complaint requests injunctive relief (i) mandating the Timeshare Association to permit Tucker to inspect and copy the member list; (ii) barring the Association from violating the terms of an agreement resolving an antifraud enforcement action brought by the state Office of the Attorney General; (iii) barring the Association from facilitating the buyback of any timeshare interest from an Association member for less than its initial purchase price; (iv) barring the Association from permitting Bluegreen to access the Association's member list. (Id. at 15.)
In motion sequence 001, Tucker moves for a preliminary injunction on his complaint. He seeks an order that would (i) require the Timeshare Association to let Tucker inspect and copy the member list, and (ii) grant the other three injunctions requested in the complaint on a temporary basis (presumably pending the disposition of the action). In motion sequence 002, the Association moves to dismiss Tucker's action in its entirety under CPLR 3211.
DISCUSSION
I. Tucker's Preliminary-Injunction Motion
To be entitled to a preliminary injunction, a movant must demonstrate that he has a likelihood of success on the ultimate merits, that he will suffer irreparable injury absent an injunction, and that the balance of the equities is in his favor. (See Ciminello Property Assocs. v. New 970 Colgate Ave. Corp. , 173 AD3d 447, 448 [1st Dept 2019].) Tucker cannot satisfy these requirements. His preliminary-injunction motion is denied.
As noted above, Tucker seeks four forms of preliminary injunctive relief. But only the first of these (compelling the Timeshare Association to allow Tucker to see and copy its member list) is related to Tucker's asserted cause of action. Even as to that injunction request, Tucker has not shown that he will suffer irreparable harm to his claimed right to see the Association's member list absent a preliminary injunction. Tucker does not assert, for example, that there is any risk that the Association will take steps during the pendency of this action to make it impossible for Tucker to inspect and copy its member list.
Additionally, mandating the Timeshare Association to grant Tucker access to the member list now would be tantamount to awarding him the ultimate relief to which he would be entitled on his single cause of action. Granting that mandatory relief at this early stage of the case would be improper except in narrow and unusual circumstances. (See Putter v. City of NY , 27 AD3d 250, 253 [1st Dept 2006] ; St. Paul Fire & Marine Ins. Co. v. York Claims Serv., Inc. , 308 AD2d 347, 348-349 [1st Dept 2003].) Tucker's papers do not explain—let alone establish—how those circumstances might exist here.
With respect to his other three injunction requests, Tucker has not articulated a basis on which he would be entitled to any injunction on these subjects—much less a preliminary injunction—since he is a stranger to each of the agreements or transactions that he asks this court to affect through injunctive relief. Tucker also fails to show that absent interim relief the conduct that he seeks to enjoin would render meaningless his claimed right to inspect and copy the member list. At most, Tucker merely alleges that unless enjoined, the Timeshare Association will continue to engage in the practices against which he wishes to organize Association members, using the member list.
This court declines to grant Tucker wide-ranging preliminary injunctive relief on so sparse a showing.
II. The Timeshare Association's Motion to Dismiss
The Timeshare Association moves under CPLR 3211 (a) (1) to dismiss the complaint based on documentary evidence, and for failure to state a cause of action under CPLR 3211 (a) (7). A documentary-evidence motion to dismiss may appropriately be granted "only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law." ( Rabos v. R & R Bagels & Bakery, Inc. , 100 AD3d 849, 851 [2d Dept 2012].) On a CPLR 3211 (a) (7) motion, the court must accept the facts alleged by the plaintiff as true and liberally construe the complaint, according it the benefit of every possible favorable inference. ( Dee v. Rakower , 112 AD3d 204, 208 [2d Dept 2013].) The court's role is limited to determining "only whether the facts as alleged fit within any cognizable legal theory"; whether "a plaintiff can ultimately establish [his or her] allegations is not part of the calculus." (Id. )
The Timeshare Association's CPLR 3211 (a) (1) motion appears to rely on the argument that Tucker's own filings in this litigation conclusively demonstrate that he lacks a proper purpose to inspect the Association's member list under N-PCL § 621. Thus, for purposes of Tucker's inspection-related request for relief, the CPLR 3211 (a) (1) and (a) (7) inquiries largely merge.
The Timeshare Association's motion to dismiss is denied with respect to Tucker's inspection-related request for relief and granted as to the remainder of his requested relief.
A. Tucker's Inspection-Related Request for Injunctive Relief
A non-profit corporation is required to maintain a list of its members that includes their contact information. (See N-PCL § 621 (a).) It is undisputed that the Timeshare Association is a non-profit corporation, that each holder of an Association timeshare interest is a member in the corporation, and that the Timeshare Association maintains an up-to-date member list as required by the statute.
A member of a non-profit corporation such as the Timeshare Association has the right under N-PCL § 621 (b) and (c) to inspect the books and records of the corporation—including its member list—as long as the request is not made for reasons other than the business of the corporation.
N-PCL§ 621 (b) also requires that the party seeking inspection must have been a member of record of the corporation for more than six months at the time of the inspection demand, and that the party provide the corporation with written notice of the demand at least five days in advance. It is undisputed that Tucker satisfies these requirements.
This statutory right complements a distinct common-law right of both shareholders of business corporations and members of non-profit corporations to inspect the corporation's books and records if the inspection is for a proper purpose. (Matter of Steinway , 159 NY 250, 263 [1899] ; accord Retirement Plan for General Employees of City of North Miami Beach v. McGraw-Hill Companies, Inc. , 120 AD3d 1052, 1055 [1st Dept 2014] [City of North Miami Beach ].) The "business of the corporation" requirement of § 621 (c) and the common law's "proper purpose" requirement are substantively identical. (See Crane Co. v. Anaconda Co. , 39 NY2d 14, 19-20 [1976].)
Where a shareholder seeking judicial enforcement of his inspection right has articulated a proper purpose for the inspection, the corporation resisting the inspection must then come forward with evidence indicating that the shareholder is instead seeking the inspection for improper purposes or in bad faith. (See Matter of Liaros v. Ted's Jumbo Red Hots, Inc. , 96 AD3d 1464, 1465 [4th Dept 2012].)
1. Tucker's stated purpose in seeking inspection
Here, Tucker's inspection claim draws on his statutory inspection right. Tucker's overall stated purpose is to inform and organize the Timeshare Association's membership against its current management, whom Tucker believes to be mismanaging the Association for its own benefit rather than that of its members. (See NYSCEF No. 2, at 6-9; NYSCEF No. 4, at 2.) Tucker's complaint in this action and his opposition to the motion to dismiss include detailed allegations setting forth the basis for these beliefs, and also attach the documents that he wishes to disseminate. (See NYSCEF No. 2, at 9-12; Mem. Law in Opp. to Mot. to Dismiss, NYSCEF No. 46, at 1-7 [Tucker's allegations]. See also NYSCEF No. 9; NYSCEF No. 49 [documents that Tucker wishes to disseminate].)
Tucker's complaint suggests in passing that he also relies in part on the common-law inspection right (see NYSCEF No. 2, at 37); but the complaint's stated cause of action is based on N-PCL § 621 (see id. , at69-73).
Tucker asserts, among other things, that he wishes to communicate with the membership regarding his allegations of mismanagement. He also seeks to disseminate information and documents—including affidavits filed by attorneys in the New York Office of the Attorney General in an antifraud action against former Timeshare Association directors—that he believes support these allegations. (See NYSCEF No. 2, at 2-3; NYSCEF No. 46, at 2-4, 9.) Tucker raises the possibility that he may use the member list to encourage litigation against the board and management of the Timeshare Association to halt its asserted mismanagement and other wrongdoing (NYSCEF No. 2, at32, 62-65), or to encourage Association members to accept a tender offer for their timeshare interests from a third party (NYSCEF No. 2, at 33).
Each of these articulated purposes for seeking inspection of the Timeshare Association's member list is proper. The Association therefore must put forward a basis to conclude that Tucker's inspection demand is made in bad faith or for improper purposes.
See Mayer v. National Arts Club , 223 AD2d 440, 440-441 [1st Dept 1996] [members of non-profit corporation may seek to communicate with fellow members about alleged corporate mismanagement and questionable practices]; S. & S. Realty Corp. v. Kleer-Vu Industries, Inc. , 53 AD2d 552, 553 [1st Dept 1976] ; and Matter of Murchison v. Alleghany Corp. , 27 Misc 2d 290, 291 [Sup Ct, NY County 1960], aff'd 12 AD2d 753 [1st Dept 1961] [shareholders in business corporation may seek to organize other shareholders to replace the corporation's incumbent management]; City of North Miami Beach , 120 AD3d at 1056 ; Matter of Hitchcock v. Union Ferry Co. , 157 AD328, 331 [2d Dept 1913]; and Sivin v. Schwartz , 22 AD2d 822, 823 [2d Dept 1964] [shareholders may attempt to obtain information that may aid legitimate litigation such as a shareholder-derivative action against the corporation's current directors]; Crane Co. , 39 NY2d at 20-23 [shareholders may seek to urge other shareholders to accept an offer tendered for their shares from a third-party seeking to gain control of the company].
Additionally, as noted above, since the Association raises its objections to inspection through a CPLR 3211 motion, Tucker's action may be dismissed only if the facts as alleged fail to fit within any cognizable legal theory. (See Whitebox Concentrated Convertible Arbitrage Partners, L.P. v. Superior Well Services, Inc. , 20 NY3d 59, 63 [2012].) On this motion, therefore, the Association's burden is to demonstrate that the pleadings necessarily show that Tucker should be denied inspection because his purpose is improper. That is a high bar to meet—and the Timeshare Association does not meet it here.
The Timeshare Association asserts that "the existence of a single improper purpose will bar Plaintiff from obtaining the requested information." NYSCEF No. 45, at 12, citing Resnik v. Admiral Capital Corp. (201 AD2d 306 [1st Dept 1994] ) and Dwyer v. Di Nardo and Metschl, P.C. (41 AD3d 1177 [4th Dept 2007] ).) This court need not decide this matter; the Timeshare Association has not established that Tucker is making his request for an improper purpose. See infra at 6-10. The court notes, though, that in both Resnik and Dwyer the Court affirmed enforcement of an inspection demand, holding that the corporation had failed to show an improper purpose. (See Resnik , 201 AD2d at 306 ; Dwyer , 41 AD3d at 1178.) And at least one court addressing this question has held instead an inspection demand should not be denied merely because "combined with [a] proper purpose there may co-exist improper purposes." (Crane Co. v. Westinghouse Air Brake Co. , 56 Misc 2d 538, 540 [Sup Ct, NY County 1968].)
2. The Timeshare Association's contentions of an improper purpose
The Timeshare Association argues that Tucker's complaint should be dismissed because his purposes in seeking inspection are improper in several respects. This argument is without merit.
First , the Timeshare Association claims that Tucker seeks access to the Association's member list to enable his counsel to solicit other timeshare owners to become clients of theirs, which the Association asserts would be improper "personal business." (NYSCEF No. 45, at 9.) But a request to inspect corporate books and records is not improper merely because the inspection will personally benefit the requester or his associates. (See Crane Co. , 39 NY2d at 22.)
To the contrary, requesters "often have something personal to gain in their effort to call corporate policies into question" ( Wells v. League of Am. Theatres & Producers, Inc. , 183 Misc 2d 915, 919 (Sup Ct, NY County 2000) ; or they may be acting in part out of "ill feelings" toward management ( Mayer v. National Arts Club , 192 AD2d 863, 865 [3d Dept 1993] ). That "personal aspect" does not preclude "there being a legitimate corporate interest involved." ( Wells , 183 Misc 2d at 919.) An inspection purpose is improper only if the requester is "seeking personal gain completely apart from any benefit to the corporation or its shareholders." ( Crane Co. , 39 NY2d at 23.)
Here, gaining additional Timeshare Association members as clients to bring litigation related to the Association would clearly benefit Tucker's counsel. Yet those Association members presumably would retain counsel only if they thought it would protect their own rights as members. The desire of Tucker's counsel to gain additional clients with the aim of "advancing through joint legal action the interests of a number of TMC members" is a proper purpose (NYSCEF No. 2, at 13), because it is "reasonably related to [each] shareholder's interest in the corporation." ( Tatko v. Tatko Bros. Slate Co. , 173 AD2d 917, 918 [3d Dept 1991] ; see also Matter of Pierson v. New Amsterdam Gas Co. , 44 AD 215, 219 [1st Dept 1899] [noting that "promot[ing] the interest of the security holders" of a corporation is a proper purpose for an inspection request].) This purpose is quite different from the Timeshare Association's hypothetical example of using the list of timeshare owners "to sell T-shirts or coffee mugs with the name "The Manhattan Club" emblazoned on them." (NYSCEF No. 45, at 9.) That merchandising effort, though directed to Timeshare Association members, would have nothing to do with their status and rights as members.
To the extent that the Timeshare Association suggests that Tucker seeks the membership list to allow his counsel to solicit clients for unrelated litigation against third parties (see NYSCEF No. 45, at 10), the Association fails to provide any record support for that suggestion.
To be sure, Tucker's assertion that his "motivation in seeking to inspect" the Association's member list can be treated as "distinct from and not attributable to" his counsel's motivations regarding the Association is unpersuasive (NYSCEF No. 2, at 64)—at least absent a categorical representation that only Tucker, rather than both he and his counsel, would have access to the member list. The motives of Tucker's lawyers, and the effect of their actions on the welfare of the Association and its members, might require more searching examination as this action progresses. Or they might affect the scope of the relief (if any) that Tucker should ultimately receive.
But on the current CPLR 3211 motion to dismiss, drawing all reasonable inferences in Tucker's favor, the Timeshare Association has not shown that the possibility of Tucker's lawyers using the member list to solicit more clients with similar claims is necessarily improper.
The Timeshare Association also asserts that inspection in aid of future litigation is not a proper purpose because that future litigation would be no more than a "strike suit" against the Association. (See NYSCEF No. 45, at 9-10 [quoting Tatko , 173 AD2d at 918 ]; NYSCEF No. 66, at 8.) But a strike suit is "based on no valid claim, brought either for nuisance value or as leverage to obtain a favorable or inflated settlement" from defendant in light of the potential costs of discovery. ( RGH Liquidating Trust v. Deloitte & Touche LLP , 17 NY3d 397, 404 n.3 [2011] [quotation marks omitted].) The Timeshare Association does not explain—much less conclusively demonstrate—why future litigation brought by Tucker's counsel on behalf of other Association members would be merely a strike suit.
Second , and relatedly, the Timeshare Association argues that Tucker's desire to organize Association members for future litigation relating to the Association is improper because suing the Association itself would be "inimical to the corporation." (NYSCEF No. 45 [quoting Tatko , 173 AD2d at 917 ].) As the Association correctly points out, certain portions of Tucker's motion papers do refer imprecisely to the possibility of bringing suits (including damages actions) against the Timeshare Association itself. (See NYSCEF No. 2, at62, 64; NYSCEF No. 46, at 10.)
Tucker also refers, however, to legal action to redress wrongs committed by the incumbent management of the Association (see NYSCEF No. 46, at 9); and his complaint alleges that the "collective action that Tucker seeks to engage in with other TMC members may include a derivative-type action" to gain control of the Association's board (see NYSCEF No. 2, at 32). As noted above, see supra at 5 n.6, a shareholder may properly seek a corporation's member list to facilitate a derivative action on behalf of the corporation against its existing management. That one might instead infer from Tucker's complaint the possibility of a future lawsuit against the corporation itself does not necessarily demonstrate at this stage of the action that Tucker's purposes are improper.
Third , the Timeshare Association also contends that Tucker improperly "wants to dissuade certain owners," who are "in arrears" on their "maintenance fees and real estate taxes," from "transferring their [timeshare] interests to the current sponsor, Bluegreen Vacations Unlimited, Inc., which will assume responsibility" for those fees and taxes. (NYSCEF No. 45, at 10-11.) The Association argues that preventing the Association from "replacing delinquent owners with a paying owner" is "undeniably adverse" to the Association's financial interests.
Tucker contends, though, that Bluegreen is purchasing these timeshare interests for the nominal sum of $100 (rather than their much higher purchase price); and that this buyback program is part of a larger scheme by the Association's management to charge excessive maintenance fees and limit availability of timeshare stays to "incentivize [Association] members to relinquish their deeded ownership interests so that BlueGreen can acquire them for next to nothing." (NYSCEF No. 46, at 11.) Thus, he argues, communicating with other Association members about the improprieties he perceives in the buyback program will help members by discouraging harmful practices of the Association's management.
Although this court refrains for now from reaching any definitive conclusions on this rationale, it does not appear on face that Tucker is acting in bad faith, or merely trying to harm the Association out of "disinterested malevolence ... against the individuals in charge of the corporation." ( Tate v. Sonotone Corp. , 272 AD 103, 105 [1st Dept 1947] [quotation marks omitted].) Instead, Tucker and the Association appear simply to disagree about what actions are in the best interests of the Association and its members. And the Association is not self-evidently correct that Tucker's desire to communicate with Association members about the buyback program will cause harm to the Association that outweighs the asserted benefits to the Association's members. (Cf. Matter of Santuccio (70 Misc 2d 587, 589-580 [Sup Ct, Monroe County] [concluding on the record in that case that the purpose of the desired inspection would be inimical to the corporation].)
This court's conclusion does not foreclose the possibility that the Association can better support its claims on this point on a more-developed record. But the Association has not done so on the present CPLR 3211 motion.
Fourth , the Timeshare Association asserts that it may properly decline to produce its member list to Tucker for inspection and copying because a corporate by-law bars it from doing so. A provision of the Association's bylaws that has been in place since 1996—and is incorporated by reference into each timeshare deed—prohibits disclosing the addresses of timeshare-owners to other owners and requires all communications to members to be disseminated through the Association's internal mail system. (See NYSCEF No. 45, at 3-4; see also NYSCEF No. 64, at 9.) The Association argues that this is a "reasonable, binding, and valid restriction" that forecloses Tucker's right to inspect the Association's member list. (Id. at 7.)
But the Court of Appeals rejected this argument long ago, in Davids v. Sillcox (297 NY 355 [1948] ). There, the then-governing statute (Membership Corporation Law § 46) required non-profit corporations annually to update their membership lists, present the updates at the corporation's annual meeting, and file the updates with the corporation's records. A member of a non-profit corporation sought the names and addresses of all members of the corporation, notwithstanding a corporate by-law precluding disclosure of the membership list without authorization of the corporation's board. ( Id. at 358, 360.) The First Department held that the by-law did not violate New York law or public policy, and that in light of the by-law the corporation was not required to provide the list. (See Davids v. Sillcox , 272 AD 54, 55 [1st Dept 1947].) The Court of Appeals reversed. The Court noted that the Membership Corporation Law barred corporate by-laws that were inconsistent with law. And it concluded that the by-law at issue was "so inconsistent with the letter and spirit" of the statutory requirement that the corporation maintain annually updated records of the names and addresses of its members as to be "void and without effect." ( Davids , 297 NY at 360.)
Membership Corporations Law § 46 provided (as relevant here) that "the directors of every membership corporation ... shall present at its annual meeting a report, verified by the president and treasurer, or by a majority of the directors, showing ... the names and places of residence of the persons who have been admitted to membership in the corporation during such [preceding] year, which report shall be filed with the records of the corporation and an abstract thereof entered in the minutes of the proceedings of the annual meeting." The Legislature has since replaced the Membership Corporations Law with the N-PCL.
Here, the N-PCL, like the statute at issue in the Davids litigation, provides that corporate by-laws may not be "inconsistent with [the N-PCL] or any other statute of this state." ( N-PCL § 602 (f).) And the N-PCL, like the statute in Davids , requires "every corporation" to keep "a list or record containing the names and addresses of all members" (id. § 621 (a)), and expressly provides that members may inspect and copy the corporation's "list or record of members" (id. § 621 (b)). Thus, under the Court of Appeals' decision in Davids , the Timeshare Association by-law in question is not, without more, an adequate basis to require Tucker to pay the Association to distribute his communications for him rather than granting him access to the member list so that he may send his communications directly.
In support of its by-laws argument, the Timeshare Association cites a decision of Supreme Court, Suffolk County (Cohalan, J.), that denied a plaintiff's request to inspect an association's member list, and instead limited the plaintiff to using the association's mailing procedures. (See NYSCEF No. 45, at 5 [citing Nitkewicz v. Carter , Index No. 28311/2006, 2007 NY Slip Op 32680(U) [Sup Ct, Suffolk County July 31, 2007].) But the association in Nitkewicz was not, as here, a corporation organized under the N-PCL. Instead, it was an unincorporated association organized under the General Associations Law—which does not contain a comparable inspection right. The court in Nitkewicz thus did not have occasion to consider the relationship between a statutory inspection right and an association's confidentiality policy for membership information.
To be sure, this case is not wholly identical to Davids . Here, the bar on releasing member information is not merely contained in the Timeshare Association's by-laws, but also incorporated by reference in every Association member's timeshare-interest deed—including Tucker. (See Tucker Deed, NYSCEF No. 42, at 5; see also Mem. Law in Support of Mot. to Dismiss, NYSCEF No. 45, at 7-8.)
That difference, though, is not dispositive. The conflict between the Association by-law barring disclosure of member information and N-PCL § 621 rendered the by-law "wholly void and without effect" to begin with. ( Davids , 297 NY at 360.) The Association fails to explain why this court should treat Tucker as having agreed to comply even with by-law provisions that contravene the N-PCL. At a minimum, given the conflict between by-law and statute, Tucker's agreement to abide by Association by-laws does not warrant dismissal at the pleading stage.
That said, whether or not the Association's rule restricting disclosure of member information has binding effect, its longstanding inclusion in the by-laws—and its incorporation by reference in every member's timeshare deed—suggest that the Association members may have a valid, reasonable interest in the privacy of their contact and address information. Should Tucker ultimately prevail on his inspection cause of action, that interest may call for tailoring the conditions under which Tucker may disseminate his message to other Association members. The best course, for example, might be to require Tucker to use the Association's internal mailing procedures—albeit at the Association's expense—rather than affording him direct access to members' address information. (See Javits v. Investors League, Inc. , 92 NYS 2d 267, 269 [Sup Ct, NY County 1949]. Cf. Davids v. Sillcox , 188 Misc 45, 52 [Sup Ct NY County 1946] [noting that "[t]here may be situations where, instead of ordering access to the list of the names and addresses of members, it would suffice to direct the mailing to the membership at large of material prepared by objecting members"], rev'd on other grounds , 272 AD 54 [1st Dept 1947], rev'd , 292 NY 618 [1948].)
To be sure, as Tucker's complaint asserts (see NYSCEF No. 2, at 55), one could in theory obtain each member's address information from their publicly recorded timeshare deeds. (See A & A Properties NY Ltd. v. Soundings Condominium , 177 Misc 2d 200, 202 [Sup Ct, NY County 1998].) But there are more than 10,000 Association members. (See NYSCEF No. 64, at 21.) Granting Tucker access to every member's address and contact information in one convenient list is materially different as a logistical matter from requiring Tucker to go through thousands of recorded deeds to compile that same information. Such access thus would be a materially greater infringement on members' privacy. This difference is reflected in the Association's rule prohibiting disclosure of the full membership list to individual members.
For present purposes, though, it is sufficient to say that under the Court of Appeals decision in Davids , the Association's by-law restricting access to member information does not alone warrant dismissal of Tucker's complaint.
B. Tucker's Non-Inspection-Related Requests for Injunctive Relief
The Timeshare Association also moves to dismiss Tucker's three other requests for injunctive relief. As the Association correctly points out (see NYSCEF No. 45, at 11), these requests are not related to—and extend far beyond—the single inspection-related cause of action in Tucker's complaint.
Indeed, Tucker's central proffered purpose in seeking the Association's member list is to seek to collectively organize its members to halt the alleged practices that would be affected by these requested injunctions. But Tucker does not explain why this court should short-circuit the collective-organization process Tucker envisions by simply enjoining the Association's alleged practices in this action. Nor has Tucker yet explained how he, as a third party, may even seek injunctive relief against the agreements and transactions of which he complains. Indeed, in opposing the Association's motion to dismiss, Tucker barely defends these requests for injunctive relief at all. (See NYSCEF No. 46, at 11-12.)
The Timeshare Association's motion to dismiss Tucker's three non-inspection-related requests for injunctive relief is granted.
Accordingly, it is
ORDERED that Tucker's motion for preliminary injunctive relief (motion sequence 001) is denied; and it is further
ORDERED that the Timeshare Association's motion to dismiss Tucker's request for permanent injunctive relief compelling the Association to permit Tucker to inspect and copy its member list (motion sequence 002) is denied; and it is further
ORDERED that the Timeshare Association's motion to dismiss Tucker's remaining three requests for permanent injunctive relief (motion sequence 002) is granted; and it is further
ORDERED that the parties appear for a preliminary conference in Part 7 of this court, Room 345, 60 Centre Street, on November 6, 2019, at 10:00 a.m.