Miller v. Gasek

—Judgment unanimously affirmed with costs. Memorandum: We reject the contention of defendants that Supreme Court erred in granting the motion of plaintiffs for summary judgment and for dismissal of the answer and counterclaims. Contrary to the contention of defendants, plaintiffs established that, under the certificate of incorporation and by-laws of plaintiff St. Margaret’s Corporation of Utica, N. Y. (Corporation), plaintiffs Henry F. Miller, Jr., Virginia H. Lowery and Robert B. Wallace are duly elected members of the Corporation. Plaintiffs also established that the funds of the Corporation are being used in accordance with the purposes of the Corporation. In response, defendants failed to produce evidentiary proof sufficient to demonstrate the existence of a triable issue of fact (see, Zuckerman v City of New York, 49 NY2d 557 , 562). (Appeal from Judgment of Supreme Court, Oneida County, Grow, J. — Summary Judgment.)

Present — Pine, J. P., Wisner, Callahan, Boehm and Fallon, JJ.