On September 30, 2023, Justice Masley of the New York County Commercial Division issued a decision in Board of Mgrs. of 11 Beach St. Condominium v. HFZ 11 Beach St. LLC, 2023 NY Slip Op. 33419(U), holding that on a motion dismiss, the defendant bears the initial burden of making a prima facie showing of a lack of standing, explaining:
On a defendant’s motion to dismiss the complaint based upon the plaintiff’s alleged lack of standing, the burden is on the moving defendant to establish, prima facie, the plaintiff’s lack of standing. To defeat a defendant’s motion, the plaintiff has no burden of establishing its standing as a matter of law; rather, the motion will be defeated if the plaintiff’s submissions raise a question of fact as to its standing.
Here, NV THB and 3B LLC assert that the Board lacks standing because it did not hold a vote to commence this action as required by New York Real Property Law § 339-d. They support this argument based on the fact that the complaint does not contain allegations that such a vote was held. 5 In response, the Board submits an email chain sent after a board meeting, recording the Board’s votes to commence this lawsuit. The Board’s counsel notes that one Board member recused himself from the vote. Thus, at the very least, the Board raises a question of fact as to its standing.
(Internal quotations and citations omitted) (emphasis added).