The following e-filed documents, listed by NYSCEF document number (Motion 001) 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48 were read on this motion to DISMISS. In this action, plaintiff, Sebastien Morbieu, is suing West End and Riverside Realty Corporation (WERS), a residential cooperative, and co-op board members Robb Keayes, Kristy Barbacane, Marjorie Rutimann, and Constance Broughton. Plaintiff’s first cause of action seeks to invalidate the meeting held by defendants on July 20, 2022, and all actions and decisions made by defendants at that meeting — namely the appointment of Rutimann and Broughton as assistant to the treasurer and assistant to the secretary, respectively. On the second cause of action, plaintiff seeks a declaration invalidating the August 14, 2022, shareholder vote and election of Rutimann and Broughton onto the board. On his third cause of action, plaintiff seeks a declaration that defendants breached their fiduciary duties and an order for specific performance or, alternatively, damages. The fourth cause of action, against Rutimann and Broughton, sounds in aiding and abetting a breach of fiduciary duty, and seeks compensatory and punitive damages. Defendants now move to dismiss the action in its entirety under CPLR 3211 (a) (7). Plaintiff cross-moves, in effect, for default judgment, on the ground that defendants’ motion is untimely under CPLR 3211 (e). Plaintiff’s cross-motion for judgment is denied. Defendants’ motion to dismiss is granted with respect to plaintiff’s first, second, and fourth causes of action, and denied with respect to the third cause of action. BACKGROUND Plaintiff is a shareholder and board member of WERS. Defendants Keayes and Barbacane are shareholders and board members of WERS. Plaintiff alleges that on July 20, 2022, Keayes and Barbacane met and appointed Rutimann as assistant to the treasurer and Broughton as assistant to the secretary. Plaintiff argues defendants did not notify him about the meeting. Then, on August 14, 2022, shareholders of WERS held a special meeting. Plaintiff alleges that on July 30, 2022, Rutimann emailed a notice of special meeting of shareholders to the WERS shareholders, but that the notice was not signed. The next day, Rutimann emailed an additional notice that was signed by Keayes and Barbacane. During the August meeting, shareholder 2R was represented by proxy. Plaintiff alleges, however, that the proxy was not given for a particular specified purpose, and therefore constituted a “blank check” to the holder of the proxy. (NYSCEF No. 14 at 43.) He further asserts that Keayes misled shareholder 2R to procure that proxy and failed to inform her that her proxy would be used to vote Rutimann and Broughton on the board; and that shareholder 2R would not have voted for Rutimann had she been so informed. (Id. at
44-45.) Rutimann and Broughton were ultimately voted onto the board by all shareholders and proxies except for plaintiff, who abstained from voting. Plaintiff claimed that the vote was procedurally incorrect because (i) Keayes misled shareholder 2R to procure her proxy, (ii) defendants did not disclose the defect in the proxy, (iii) the co-op improperly handled a series of leaks in Keayes’s unit, and (iv) defendants did not disclose their conflicts of interest. (NYSCEF No. 14 at
