10692. ALIXANDRA C. BAKER plf-ap, v. 16 SUTTON PLACE APARTMENT CORPORATION, def-res — Chadbourne & Parke LLP, New York (Elizabeth M. Miller of counsel), for ap — Braverman Greenspun, P.C., New York (Scott S. Greenspun of counsel), for res — Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered March 7, 2012, which, insofar as appealed from as limited by the briefs, granted defendant’s motion for summary judgment dismissing plaintiffs’ first action (index No. 106380/02), and pursuant to CPLR 3211 to dismiss the causes of action in the second action (index No. 110697/10) alleging breach of the covenant of good faith and fair dealing, breach of fiduciary duty, for a declaratory judgment that the construction of a roof garden on the subject building would constitute a breach of the lease and that the putative lease amendment would not bind plaintiffs, and for a permanent injunction, unanimously affirmed, with costs.
The court properly dismissed the first action wherein plaintiffs, the tenants-shareholders of a penthouse apartment in defendant cooperative’s residential building, seek an order permanently enjoining defendant from constructing a garden on the roof of the building. Plaintiffs failed to show entitlement to the very “narrow” protections afforded by the frustration-of-purpose doctrine (Crown IT Servs., Inc. v. Koval-Olsen, 11 AD3d 263, 265 [1st Dept 2004]). The absence of a roof garden, and the inability of defendant to subsequently install one, was clearly not “so completely the basis of the contract that, as both parties understood, without it, the transaction would have made little sense” (id.). The proprietary lease was the same one used by defendant for all of the cooperative members, the entire remainder of whom were largely unaffected by the presence or absence of a roof garden. Moreover, plaintiffs entered into the lease knowing that a majority vote by the cooperative’s shareholders could result in the very garden they claim the lease’s purpose was to prevent.
