The policy in question is a $20,000 ordinary life policy with double indemnity for accidental death and with family income benefit. The family income rider provides for payment of monthly income of $200 beginning one month from date of death and continuing until April 1, 1974, and for a final payment of $20,000 on that day. It also provides that: “ No beneficiary shall have the right to assign, encumber, alienate, anticipate, or commute any payment hereunder or to change the manner of settlement in any way unless such right is given the beneficiary by the owner in writing and is endorsed on the policy by an officer of the society.” No such indorsement appears on the policy; the only exception to the no commutation provision is that the company reserves the right if, by reason of loans, the monthly benefit to be paid is less than $20, to commute at 2%% and settle the policy in one lump sum. The widow contends that by contesting the validity of the policy the company repudiated it, entitling her as <mask> to recover for breach of contract the present value of sums payable in the future as well as all sums, with interest, that should have been paid to date. The company contends that the widow can now recover only sums heretofore payable with interest and that the widow cannot recover amounts payable under the policy after date of the judgment until the respective due dates of those amounts. In dollars and cents, with interest to November 2,1962, and with an adjustment resulting from the erroneous statement of the insured’s age, the widow asks judgment for $107,352.64; the *368company argues that the judgment must be for $54,618.82, and concedes that there would then remain 137 installments of $214.95 each, plus a final payment of $21,494.84. The court agrees with the company’s contention.


Prof. Lambert suggests that logically the courts might usefully invoke the Blessington case (305 N. Y. 140, supra) as a basis for recognizing an implied warranty running to a <mask>, and continues (p. 421): A court’s capacity to do justice in the field of products liability can be withered by an overzealous attachment to the archaic privity rule * * a court nominally committed to the talismanic privity rule can judiciously avoid its blighting effects and, by admirable resourcefulness, invoke the implied warranty mechanism (so that the warranty right is extended to the third party beneficiary) * * *. gee also 20 NACCA Law Journal 291-302; 17 id. 375-376; 16 id. 352-356.” The responsibility to keep the law straight is a high one. It should not be reduced to the mean task of keeping it straight and narrow.’ Traynor, gome Open Questions on the Work of State Appellate Courts,’ 24 IT. Chi. L. Bev. 211,219 (1957).”


We also agree with the contention of claimant that the court erred in denying its claim for damages resulting from delays encountered in constructing the railroad overpass. The record establishes that the extraordinary and unanticipated delay was attributable to Conrail’s unreasonable refusal to accommodate claimant’s schedule. We disagree with the court’s conclusion that the State had no obligation to obtain Conrail’s cooperation. The construction contract provided that all work affecting the railroad would be "carried out under the joint supervision of the Department of Transportation and the railroad company”. Pursuant to that provision, the State *965entered into a separate agreement with Conrail, by which Conrail consented to claimant’s entry upon its premises for the purpose of performing all necessary work, agreed to make any "necessary changes in its railroad and railroad facilities to the extent required for” construction, and agreed to "coordinate its said work” and "to cooperate with” claimant. Significantly, the agreement between the State and Conrail obligated the State to reimburse Conrail for all its costs in accommodating claimant. In our view, the State would not have entered into that contract with Conrail unless the construction contract required it to secure Conrail’s cooperation. In any event, the second agreement granted the State the right to enforce Conrail’s cooperation for the benefit of claimant, a <mask>. We thus conclude that the State bore the contractual risk for the expense of delay in the event that Conrail failed to cooperate.


Finally, the city argues that, if it be assumed that the city commissioner did act on the claim and deny it, the third-party action constitutes an impermissible collateral attack against his decision, which is reviewable in the first instance by the State department, in a “fair hearing”. The main difficulty with this argument is a factual one. Nowhere is it shown, or even asserted, that Jones was ever given notice that the claim for payment of the hospital bill has been denied by the city commissioner. Furthermore, it is questionable whether, even if such notice and failure timely to seek administrative review could be shown, the ringing rationale of McDermott (supra) would not impose a quasi-contractual duty on the city to hold Jones harmless for breach of duty that may have been caused by the conduct or inaction of either the city department or H & H, which as noted is closely related to the city. (Indeed, in holding the plaintiff harmless, the city would be, in a sense, paying itself, and it would be using funds derived not only from city revenues but from State and Federal sources as well.) Even in a similar case involving a private hospital, it was held that the hospital had a duty to act so as to insure that claims of patients eligible for Medicaid payment are properly processed. (Mount Sinai Hosp. v Kornegay, 75 Misc 2d 302.) Indeed, the latter case expressed approval of the view that, if the patient is eligible for Medicaid, the city Department of Social Services, not the patient, becomes the primary obligor, as the promissor in a <mask> contract. (See Knickerbocker Hosp. v Downing, 65 Misc 2d 278.) (If H & H wishes to maintain the legal fiction that it is separate and distinct from the city, perhaps it should consider adding or substituting the city as a party defendant in the main action, *65since its quarrel appears to be with the city department and not with Jones, whom no one, so far, denies was eligible to have his bill paid with Medicaid funds.)


In its motion, Lockwood contends that it is entitled to contractual indemnification from Tully as a <mask> of a contract entered into between Tully and the State of New York Department of Transportation. “[A] party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor.” (Cava Constr. Co., Inc. v Gealtec Remodeling Corp., 58 AD3d 660, 662 [2d Dept 2009]; see also General Obligations Law § 5-322.1.) Here, since Lockwood fails to establish prima facie that it was free of negligence, it is not entitled to summary judgment on its claim for contractual indemnification as against Tully.


. On October 21, 2013, the City and the Museum executed an amendment to the lease, whereby the Museum was granted the right to impose a mandatory entrance fee, subject to approval by the City, which “shall not be unreasonably withheld.” (See letter to ct of Bruce R. Kelly, dated Oct. 24, 2013 [New York State Courts electronic filing Doc. No. 43].) Not only does this amendment not alter the analysis in this decision, if anything, it bolsters the court’s ruling (in Part III.B) that plaintiffs cannot maintain a <mask> claim for specific performance under the lease. However, in this deci*555sion, the court will not speculate about the degree to which the amendment may either moot or preclude some of the claims in these cases. This will be addressed at the preliminary conference, scheduled below.


There is no question that NYCHA owes a duty to its tenants, well established in landlord and tenant law. However, *731there was no testimony from any of the claimants that NYCHA breached its duty. NYCHA was, therefore, dismissed from the actions. Con Edison claims it owes no duty to the tenants in this or any public housing project due to lack of privity, that is, because the utility account is with the landlord and the cost of electricity is included in the rent. In other words, Con Ed claims the tenants are not third-party beneficiaries of the contract between Con Ed and NYCHA for electricity. Con Edison provided no case law for this proposition, and the court, finding the argument preposterous during the liability portion of the Small Claims Court trial, proceeded directly to the issue of breach. In preparing a written decision in this matter, I find that this issue of privity or entitlement to treatment as a <mask> of the contract is a question of first impression as concerns residential tenants’ property damage. There is one case concerning residential tenants, Strauss v Belle Realty Co. (65 NY2d 399 [1985]), which is distinguishable, as it concerns a tenant injured in the common area of an apartment building who fell during a blackout on defective stairs. The blackout was found to be caused by the gross negligence of Con Edison. The Court of Appeals held that while the absence of privity does not foreclose recognition of a duty, it is the responsibility of the courts, in fixing the orbit of duty, to limit the legal consequences of wrongs to a controllable degree, and to protect against crushing exposure to liability. For the reasons stated below, public policy requires finding that tenants in public housing are third-party beneficiaries of NYCHA’s contract with Con Edison for electric service.


The second cause of action alleges that defendants breached an alleged contract with Etna as to which Penvest was a <mask> by providing a misleading financial statement on Etna. In opposition to this motion, plaintiff *777argues that an accountant is not immune from liability to a lender for negligence in reviewing a borrower’s financial statements and rendering an uncertified report (Iselin & Co. v Mann Judd Landau, 71 NY2d 420, 422-423 [1988]). As the Court of Appeals has held, an accountant may be liable to the lender on a theory of negligent preparation of a borrower’s financial statements and rendering a report therein, even an uncertified one, where, even though the engagement is pursuant to a contract entered into between the accountant and the borrower, there is "evidence of a relationship sufficiently approaching privity between the lender and the accountant” (71 NY2d, at 423, supra). In determining whether there is a bond " 'so close as to approach that of privity’ ”, the Court of Appeals has "spelled out the following criteria for liability: (1) awareness that the reports were to be used for a particular purpose or purposes; (2) reliance by a known party or parties in furtherance of that purpose; and (3) some conduct by the defendants linking them to the party or parties and evincing defendant’s understanding of their reliance” (Ossining Union Free School Dist. v Anderson LaRocca Anderson, 73 NY2d 417, 425 [1989], citing Credit Alliance Corp. v Andersen & Co., 65 NY2d 536 [1985]).


There is no legal theory which supports Mr. Sichel’s claim for damages. The December 25, 1984 agreement may have been an enforceable contract between Mr. and Mrs. Lowenstein (the parties thereto) and perhaps also by any <mask> named in their mutual wills (Rastetter v Hoenninger, 214 NY 66; Tutunjian v Vetzigian, 299 NY 315). But nothing in the record establishes that Mr. Sichel was an intended third-party beneficiary of this agreement. Furthermore, as mentioned above, as the draftsman of such a contract Mr. Sichel has a duty to show that he fully disclosed all relevant facts to his clients and that his appointment was fair and reasonable (Matter of Weinstock, supra; Matter of Becker, 104 AD2d 444; Matter of Laflin, 111 AD2d 924; Matter of Carlisle, 142 Misc 2d 657, affd 159 AD2d 379; Matter of Thron, 139 Misc 2d 1045; Matter of Stalbe, 130 Misc 2d 725; Matter of Harris, 123 Misc 2d 247). The record is devoid of any such proof.


The <mask> doctrine was approved in the Klein v. Duchess Sandwich Co. (14 Cal. 2d 272, supra) case, citing Dryden v. Continental Baking Co. (11 Cal. 2d 33) where the husband bought the bread, the court saying (p. 284): “In answer to the contention of the. defendant baking company that no recovery should have been allowed on the implied warranty theory because there was lack of privity of contract, the court observed that, ‘ assuming that privity is an essential element of such an action, it might well be urged that the wife * * * *54was a third party beneficiary of the contract!” (Italics supplied.)


"We cannot accept the view of the court below that the bond may be construed as a common-law bond, free from the statutory restrictions. It is obvious that it was the intention of *230the Comptroller to exact a statutory bond in the form he had prescribed and it is equally clear that it was the intention of the surety company to give such a bond. The plaintiff as a <mask> cannot claim that the instrument is something different from that which the parties plainly intended it to be. (Hub Oil Co. v. Jodomar, 176 Misc. 320.)


. The argument is appealing but somewhat tenuous. Laddon (supra) specifically referred to provisions of the California Insurance Law which gave a plaintiff the right to sue the carrier where a judgment against the insured remains unsatisfied. New York, as virtually every other State, has similar statutory provisions (Insurance Law, § 167, subd. 7) but it seems premature to apply the <mask> doctrine in a case where the plaintiff has not achieved the status of a judgment creditor (cf. Jackson v. Citizens Cas. Co. of N. Y., 277 N. Y. 385 [decided under the predecessor of Insurance Law, § 167]). As originally conceived the purpose of liability insurance was to indemnify the insured against loss (Creem v. Fidelity & Cas. Co. of N. Y., 141 App. Div. 493, mod. 206 N. Y. 733; Langmaid, “ Subrogation in Suretyship and Insurance ”, 47 Harv. L. Rev. 976, 1002 [1934]) but today the design is such that the insurance constitutes the asset that will be used in the first instance to satisfy a claim or judgment. An insured is thus considered a prudent person for having obtained insurance and there are expressions in the eases that at least to the extent of medical payment coverage the injured person is a third-party beneficiary of the insurance contract (Silinsky v. State-Wide Ins. Co., 30 A D 2d 1; Moore v. Leggette, 24 A D 2d 891, affd. 18 N Y 2d 864). Nonetheless, even these limited statements regarding third-party beneficiary status have been questioned (Grynbal v. Grynbal, 32 A D 2d 427). Furthermore, it has been held that, except as section 167 of the Insurance Law provides, a noninsured person “is not a third-party beneficiary of the contract of insurance obtained by the insured ” (Browdy v. State-Wide Ins. Co., 56 Misc 2d 610, 617 [Shapiro, J.]; cf. Gordon v. Nationwide Mut. Ins. Co., 30 N Y 2d 427; Pipoli v. United States Fid. & Guar. Co., 38 A D 2d 249, affd. 31 N Y 2d 679; Matter of Kreloff, 65 Misc 2d 692; Comment, 46 St. John’s L. Rev. 172 [1971]); note, 36 Brooklyn L. Rev. 464, 482-484 [1970]). Consequently, it is unlikely that in the usual negligence action the third-party beneficiary doctrine will be deemed applicable so as to confer upon an injured person the absolute right to pretrial discovery of insurance coverage. Upon the facts at bar, this court holds that the aforesaid doctrine is not applicable for discovery purposes.


Plaintiff claims that CASSM Realty’s proprietary lease with O’Neill also entitles her, as a <mask> of that contract, to live in a building where his unit, like other units, is owned and occupied by a family with an artist, as is likewise guaranteed by her proprietary lease with CASSM Realty. (Cornhusker Farms, Inc. v Hunts Point Coop. Mkt., Inc., 34 AD3d at 310; Gap, Inc. v Fisher Dev., Inc., 27 AD3d at 211-212; National Union Fire Ins. Co. of Pittsburgh, Pa. v Red Apple Group, 309 AD2d at 657; Internationale Nederlanden [U.S.] Capital Corp. v Bankers Trust Co., 261 AD2d at 123; see Fourth Ocean Putnam Corp. v Interstate Wrecking Co., 66 NY2d at 44-45; Edge Mgt. Consulting, Inc. v Blank, 25 AD3d at 368-369.) While recognizing the strict requirements for conferring third-party *277beneficiary status, absent CASSM Realty’s proprietary lease with O’Neill, the court may not grant either O’Neill or plaintiff summary judgment on plaintiff’s claim as a third-party beneficiary of that contract. (Mandarin Trading Ltd. v Wildenstein, 16 NY3d at 181-182; Mendel v Henry Phipps Plaza W., Inc., 6 NY3d at 786; State of Cal. Pub. Employees’ Retirement Sys. v Shearman & Sterling, 95 NY2d at 434-435; Roosevelt Islanders for Responsible Southtown Dev. v Roosevelt Is. Operating Corp., 291 AD2d at 57.)


John R. Tenney, J. Anthony J. Zinga, Jr., brings this action to enforce the terms of a separation agreement between his late father, Anthony Jr. Zinga, Sr., and his mother, Carmella T. Zinga. This agreement was dated April 4, 1972, and at paragraph 4, states as follows: "The Husband agrees to maintain and keep in effect his present life insurance policies naming his child as beneficiary.” The plaintiff in this proceeding is the child referred to in the separation agreement. Mr. Zinga argues that the provision of the separation agreement puts him in the position of a <mask>, and that, therefore, he was entitled to enforce the contract and receive the proceeds of the policy at the time of his father’s death. (Ferro v Bologna, 31 NY2d 30; Forman v Forman, 17 NY2d 274.)


Defendant appears to qualify as a <mask>. Her husband was compelled to provide her with a mobile home which he fulfilled by his contract with the plaintiff. (Vrooman v Turner, 69 NY 280; Snyder Plumbing & Heating Corp. v Purcell, 9 AD2d 505; Murphy v Transportation Vehicles, 22 Misc 2d 966.) It is not necessary for *516the plaintiffs to make any promise to defendant. (Vroomah v Turner, supra, p 284.) Plaintiffs were or should have been aware of the husband’s intentions since possession of the premises was by defendant. In any case, plaintiffs were on notice of an interest by defendant, and they had an obligation to determine her interest before foreclosure or accepting a quitclaim deed in lieu of foreclosure.


"[T]he identity of a <mask> need not be set forth in the contract or, for that matter, even be known as of the time of its execution" (Encore Lake Grove Homeowners Assn., Inc. v Cashin Assoc., P.C., 111 AD3d 881, 883 [internal quotation marks omitted]; see Desernio v Adrelean, 188 AD3d 992, 993). "However, an intent to benefit the third party must be shown, and, absent such intent, the third party is merely an incidental beneficiary with no right to enforce the particular contracts" (Port Chester Elec. Constr. Corp. v Atlas, 40 NY2d 652, 655 [citations omitted]; see Dormitory Auth. of the State of N.Y. v Samson Constr. Co., 30 NY3d 704, 710). Courts generally have recognized "a third party's right to enforce a contract in two situations: when the third party is the only one who could recover for the breach of contract or when it is otherwise clear from the language of the contract that there was 'an intent to permit enforcement by the third party'" (Dormitory Auth. of the State of N.Y. v Samson Constr. Co., 30 NY3d at 710, quoting Fourth Ocean Putnam Corp. v Interstate Wrecking Co., 66 NY2d 38, 45).


AHS made its group policy available to the employees of Newsday, of which Mairano was one. AHS obligated itself merely to provide Mairano with hospital service benefits, nothing more. When AHS contracted with Smithtown .General Hospital, it agreed to co-operate directly with the hospital for hospital benefits rendered its subscribers. Petitioner herein, the judgment creditor, stands in the shoes of Mairano as to any rights Mairano has against AHS. The only right that Mairano had against AHS was the right to hospital benefits. The right to payment for such benefits ran directly to the ¡hospital from AHS, subject to approval as to adequacy by the Commissioner of Health and subject ,to the approval of the Superintendent of Insurance as to reasonableness. Mairano is a <mask> to the contract between AHS and Newsday only to the extent that he receive hospital benefits.


The bank, in support of its cross motion seeking dismissal of the counterclaims, alleges that it had no duty to Frances Blackman as a <mask> of the bank’s contract with Roxanna Edwards, and that it should not be held liable for negligence in failing to conform to the requirements of EPTL 7-5.2 (1). The bank alleges that what it did was a common practice in the banking community, and the decision of the Appellate Division and Court of Appeals requiring strict compliance with EPTL 13-3.5 was unforeseen. Furthermore, the bank alleges that both the representatives of the Black-man and Farrar Estates authorized Alice Savage to withdraw the proceeds of the Totten trust, and therefore the plaintiff has complied with the agreement it had with its deceased depositor Roxanna Edwards as well as with EPTL 7-5.4.


An examination of defendant’s brief reveals that the defendant presented this argument: There was no privity of contract between Alice (the wife) and the A. & P. and she cannot recover on a contract claim for breach of warranty (where the husband was the purchaser) ’ ’. In affirming, the Court of Appeals pierced the privity veil by employing either the agency or <mask> theories. If the wife’s funds or joint household funds were used, then the husband acted as “ agent ” for his wife. If the husband’s money was used, then he made the purchase for the benefit of his family consisting of Ms wife and infant (the infant was not injured). Again, common-sense justice outranks technicality. Whatever method of construction is used it seems apparent that the judicial concern is primarily with eroding away an artificial concept.


The Appellate Divisions, however, have not uniformly applied the foregoing rule. Gaco W. adheres to the rule quoted above that an owner has no right of recovery against a subcontractor in the absence of contractual language to the contrary. (229 AD2d at 474 [where no express provision of the contract provided one way or the other on the <mask> issue (see record on appeal)].) That is our case here.


The general rule is “that the owner has no right against the subcontractor, in the absence of clear words to the contrary.” (4 Corbin on Contracts § 779D, at 47 [1951].) “The owner is neither a creditor beneficiary nor donee beneficiary [i.e., is not an intended beneficiary in modern parlance]; the benefit that he receives from performance [of the subcontract] must be regarded as merely incidental.” (Id.; see e.g. Outlaw v Airtech A.C. & Heating, Inc., 412d 156, 164 [DC Cir 2005, Roberts, J.] [“traditional contract law rule that, absent any indication to the contrary in an agreement, property owners are not intended or third-party beneficiaries of contracts between contractors and subcontractors”]; Pierce Assoc., Inc. v Nemours Found., 865d 530, 535-539 [3d Cir 1988] [same]; International Fid. Ins. Co. v Gaco W., 229 AD2d 471, 474 [2d Dept 1996].) The New York Court of Appeals has adhered to this rule in the reverse situation of a subcontractor’s suit against the owner seeking enforcement of owner’s obligation to pay the general contractor. (Port Chester Elec. Constr. Corp. v Atlas, 40 NY2d 652, 656 [1976], citing 4 Corbin, Contracts § 779D; see also Artwear, Inc. v Hughes, 202 AD2d 76, 84 [1st Dept 1994] [“it is well settled that the subcontractor or supplier of a general contractor on a construction project is not invested with <mask> status”]; Schuler-Haas Elec. Corp. v Wager Constr. Corp., 57 AD2d 707 [4th Dept 1977].) The Court of Appeals also relied on, as it so very often does in contract cases, the Restatement (Second) of Contracts for this conclusion. The American Law Institute treats both situations interchangeably (Restatement [Second] of Contracts § 302, Comment e, Illustration 19 [“A contracts to erect a building for C. B then contracts with A to supply lumber needed for the building. C is an incidental beneficiary of B’s promise, and B is an incidental beneficiary of C’s promise to pay A for the building”]). There is no reason to believe, especially in view of the Court’s citation of the Restatement in Port Chester (40 NY2d at 656), that the Court of Appeals would not treat both situations similarly, on *181the theory that “the . . . services performed by the subcontractor . . . are for the benefit of the general contractor who is responsible for the completion of the improvement, not for the benefit of the owner.” (Schuler-Haas Elec., 57 AD2d at 708; see also 4 Corbin, Contracts § 779D; 9-45 Corbin on Contracts § 45.3 [rev ed].)


A contract of reinsurance is one between the reinsurer and the insurer/reinsured. The individual or entity that is the other party to the basic contract of insurance (the insured) is in privity with the insurer, not with the reinsurer. An agreement of reinsurance is a contract of indemnity by which the reinsuring company, in return for a part of the premium, undertakes to reimburse the insurance company/reinsured for a loss sustained on risks insured by the latter. (Turner Constr. Co. v Seaboard Sur. Co., 85 AD2d 325, 327 [1st Dept 1982]; National Ins. & Guar. Corp. v Vander Veer, 66 Misc 2d 862 [Sup Ct 1971]; 13A Appleman, Insurance Law and Practice § 7694 [1976].) Absent other specific provisions, the reinsurer has no obligation to the original insured and the latter has no right of action against the former. This is so even if the insurer becomes insolvent. (Prince Carpentry v Cosmopolitan Mut. Ins. Co., 124 Misc 2d 919, 931 [Sup Ct 1984]; Skandia Am. Reinsurance Corp. v Schenck, 441 F Supp 715, 724 [SD NY 1977]; 19 Couch, Insurance 2d § 80:69 [1983].) Thus, the insured cannot claim the status of a <mask> of the reinsurance contract. (Sofia Bros. v General Reinsurance Corp., 153 Misc 6, 9 [Sup Ct 1934]; Skandia Am. Reinsurance Corp. v Schenck, supra.) Frequently the insured will not know *313of the existence of a reinsurance contract, but even if there is knowledge, such an awareness will not assist an insured who later decides to sue the reinsurer. (Squibb-Mathieson Intl. Corp. v St. Paul Mercury Ins. Co., 44 Misc 2d 835, 837 [Sup Ct 1964] [Nunez, J.]; see also, Republic Metalware Co. v General Reinsurance Corp., 245 App Div 232 [4th Dept 1935]; Insurance Co. v Park & Pollard Co., 190 App Div 388 [1st Dept], affd 229 NY 631 [1920]; China Union Lines v American Mar. Underwriters, 755d 26, 30 [2d Cir 1985].)


The second cause of action alleges that respondents’ approval of the GPP and FEIS violated the State-City MOU because it is not consistent with the provisions contained in the IMP This, too, is without merit. Firstly, the MOU plainly states that it was “for the sole and exclusive benefit of the PARTIES hereto and no other person or entity is intended to be a beneficiary hereof nor may such person or entity claim or be entitled to any right or benefit of any nature whatsoever in connection herewith.” Thus, petitioners have no standing to enforce the MOU (see Mendel v Henry Phipps Plaza W., Inc., 6 NY3d 783 [2006] [plaintiffs had no standing to enforce purported <mask> rights under a land disposition agreement between the City and defendant, since, inter alia, the agreement explicitly negated any intent to permit enforcement by third parties]).


The basic difficulty with defendant’s position is that, while it correctly points out that plaintiff is a <mask> of a contract it made with the city (Blue Cross of Northeastern N. Y. v Ayotte, 35 AD2d 258, 260), it then overlooks plaintiffs status as a third-party beneficiary in July, 1976. At that time, the contract of July 1, 1967, was in effect by virtue of the automatic renewal provision. This contract had been renewed from year to year in accordance with its terms. Indeed, by letter dated June 3, 1976, defendant recognized the annual renewal in the course of advising the city that while certain new benefits mandated by the Legislature did not have to be included until the renewal date, "unless we hear from you to the contrary, we will apply the new benefit to your group immediately instead of your group’s annual renewal date which is July 1, 1976.” Thus, even if the annual renewal provision were regarded as unclear, the "practical construe*449tion” given to the contract by the parties for some nine years recognized that it was renewed annually. (Brooklyn Public Lib. v City of New York, 250 NY 495, 501.) Since Gruskin’s letter was ineffective to eliminate benefits covered by no-fault, the contract which renewed itself on July 1, 1976, was renewed without the no-fault change. While defendant and the city may have had the right to make changes in this contract (Blue Cross of Northeastern N. Y. v Ayotte, supra) and to eliminate duplication of coverage with respect to no-fault (Dudley v Blue Cross, 63 AD2d 813), they could not take away rights which had already vested in plaintiff. (Clifford v Corrigan, 117 NY 257, 263.) When plaintiff incurred the hospitalization expenses in July, 1976, plaintiff’s right to payment by defendant vested under the hospitalization contract which, by automatic renewal, continued in effect without the no-fault change. Defendant then became liable for payment, and subsequent changes in the contract could not take away that right which had already vested. See, also, Stein v Severino (41 Misc 2d 209, 211) stating: "Parties to a contract entered into for the benefit of a third person may rescind the contract as they see fit, without the assent of the third person at any time before the contract is accepted, adopted or acted upon by him and such rescission deprives the third person of any rights under or because of such contract (Moore v. Ryder, 65 N. Y. 438). However, after the third person accepts, adopts or acts upon the contract entered into for his benefit, the parties thereto cannot rescind the same without his consent, so as to deprive him of its benefits (Comley v. Dazian, 114 N. Y. 161).” Judgment for plaintiff against defendant for $836.


Where a union welfare fund purchases insurance for the benefit of union employees, questions of construction of the contract of insurance are cognizable in a court of law. In *224Smith v Boer (45 Misc 2d 338) the Civil Court of the City of New York determined which of two provisions in a union trust agreement governed the claim of the beneficiary of a deceased union member to recover the proceeds of a group life insurance policy. In Pasko v Cuba (33 Misc 2d 350) plaintiff’s intestate brought suit in the former Municipal Court to enforce the terms of a life insurance policy against union welfare fund trustees who had sole power to approve the application. The court held (p 352): "The union’s claim that the court has no jurisdiction is without merit. Plaintiff’s intestate, as a <mask>, may institute suit under the collective bargaining contract and need not resort to a court of equity.” (See, also, Soto v International Organization of Masters Mates & Pilots of Amer., 74 Misc 2d 355; Krohn v Steinlauf, 22 Misc 2d 365.)


Vikash suggests that Ashlyne's contract claim is procedurally improper, asserting Ashlyne "has not brought an action to enforce her rights as a <mask> in any court of competent jurisdiction," and she "did not join the Department of Homeland Security to the state court dissolution action." Vikash's undeveloped arguments lack merit. He offers no authority that a state court lacks jurisdiction over Ashlyne's contract claim. Nor does he explain why the Department of Homeland Security must be joined as a party to a sponsored immigrant's contract claim based on an I-864 affidavit. As we have seen, by signing the I-864 affidavit, Vikash agreed to submit to state court jurisdiction. ( 8 U.S.C. § 1183a, subd. (a)(1)(C).) And state courts regularly exercise jurisdiction over contract claims involving I-864 affidavits brought by the sponsored immigrant alone. (See Love v. Love , supra , 33 A.3d 1268 [Pennsylvania] ; In re Marriage of Kamali and Alizadeh , supra , 356 S.W.3d 544 [Texas] ; In re Marriage of Sandhu , supra , 207 P.3d 1067, 1071 [Kansas] ; Naik v. Naik , supra , 944 A.2d 713, 717 [New Jersey] ; Davis v. United States , supra , 499 F.3d 590, 592 [recognizing propriety of enforcement of I-864 affidavit in Ohio state court]; Moody v. Sorokina , supra , 40 A.D.3d 14, 830 N.Y.S.2d 399 [New York].)


Order, Supreme Court, New York County (Barry R. Ostrager, J.), entered on or about July 12, 2021, which granted in part and denied in part defendants' motion to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7), unanimously modified, on the law, to grant the motion as to the claims for breach of contract asserted by plaintiff as a <mask>, and otherwise affirmed, without costs.


Finally, the defendant contends that even if the account is found to be a special account, yet, the plaintiff as assignee of First National City Bank and Hubshman Factors Department is not entitled to recover. It is well settled that deposits made to a special account, in the absence of a special agreement to the contrary, if not used for the purposes of the special account, are to be returned to the depositor. (Cassedy v. Johnstown Bank, 246 App. Div. 337, supra.) It may well be that the third party for whom the account was set up, not being the beneficiary of a trust, has no right to recover the funds deposited therein. (Staten Is. Cricket & Baseball Club v. Farmers Loan & Trust Co., 41 App. Div. 321.) This action, however, is brought by the depositor, not only as assignee of the third party (First National City Bank and Hubshman Factors Department) but also in its own right. The amended complaint in paragraph 10 alleges ‘ ‘ the defendant has unlawfully refused to pay or remit said amount to Hubshman Factors Department, First National City Bank or to the plaintiff although due demand has been made therefor ” (emphasis added). Clearly, the proceeds of a special account such as the one before the court, not being subject to a setoff by the depositary bank, belong to the depositor or his assignee, and when the depositor further takes an assignment of all right, title and interest of the <mask> of the deposit, the depositary bank must relinquish possession. Judgment granted to the plaintiff for the amount demanded in the complaint.


It is this court’s position that the questioned clauses in the life insurance contracts (transferring ownership of the policies), create a <mask> contract, performable at death, and "[l]ike many similar instruments, contractual in nature, which provide for the disposition of property after death, they need not conform to the requirements of the statute of wills.” (Matter of Hillowitz, 22 NY2d 107, 110; Matter of Gross, 35 AD2d 830.) These clauses are not testamentary dispositions but valid contractual conditions and therefore must be given full force and effect. (Matter of Cairns, 33 Misc 2d 621.)


In Moch Co. v Rensselaer Water Co., the Court of Appeals rejected an attempt by the plaintiff (whose warehouse suffered extensive fire damage) to sue a waterworks company for failing to provide sufficient water (to douse the fire) on the theory that plaintiff was a <mask> of the contract between the company and the city. In so holding, the Court held as follows (247 NY at 164-165):


Count 12: breach of contract against JFK and Middlesex, for violating their professional services agreement by failing to comply with all applicable hospital policies, procedures, protocols, and guidelines governing services provided by physicians in the emergency department, including but not limited to the JFK physician assistant policy with respect to the treatment and care of plaintiff, a <mask> of the professional services agreement;


There is no merit to plaintiffs appeal from the order entered April 23, 2010, insofar as reviewed. Plaintiffs theory of holding Chase liable is based upon the bank’s status as a <mask>. It is well settled that a nonparty to a contract cannot be named as a defendant in a breach of contract action unless the nonparty assumed the obligations under the agreement (see Bartsch v Bartsch, 54 AD2d 940 [1976]; International Customs Assoc., Inc. v Ford Motor Co., 893 F Supp 1251, 1255 [1995]). While the status of an intended third-party beneficiary gives that individual a right to sue on a contract to which that individual is not a party, this status does not confer upon one of the parties to the agreement the right to sue the third-party beneficiary (see International Customs Assoc., Inc., 893 F Supp at 1255-1256). In this case, plaintiff did not establish that the bank had assumed any obligations of the agreement between plaintiff and the other named defendants.


. We note claimant has also failed to allege any sufficient claim for unjust enrichment (see Custer Bldrs. v Quaker Heritage, 41 AD2d 448; 62 ALR3d 288). Further, claimant’s memorandum herein specifically eschews any <mask> theory and it is clear claimant is at best only an incidental beneficiary of the State’s prime contracts with Green Island, thereby not being entitled to any recovery thereunder. (See Zweig v Metropolitan Life Ins. Co., 73 Misc 2d 93, 95; Restatement, Contracts, § 147; § 133, illus 12.)


*431I hold that the respondents’ contentions are correct and that they are third-party beneficiaries of the provision in question. Contrary to the petitioner’s contention that a holding of <mask> status would vest the respondents with rights of “perpetual tenancies”, my holding here only requires the petitioner, prior to any proposed change in commercial use, or use other than one originally intended, to secure the written approval of H.U.D. The burden is not too onerous and does not, in fact, prohibit a change in use but merely requires approval from the secretary prior to such change.


To the defendant’s objection that he has failed to establish any right of action as a taxpayer within the ambit of section 51 of the General Municipal Law, the plaintiff contends that since he here sues a private stock corporation and not an officer, agent, commissioner or other person acting on behalf of a *266municipal corporation, said statute is inapplicable and that he bases his right to sue as a <mask> of a contract, pursuant to such authorities as Lawrence v. Fox (20 N. Y. 268) and Pond v. New Rochelle Water Co. (183 N. Y. 330). The plaintiff overlooks, however, the language of section 910 of the contract between the defendant and the city, dated October 8, 1959, which provides that nothing expressed in or to be implied therefrom: “ is intended or shall be construed to give any person, firm or corporation, other than the parties hereto and the holder or holders of the first mortgage and the second mortgage authorized by Paragraph 406 and the Federal Housing Commissioner or his successors in office, any legal or equitable right, remedy, or claim under this Agreement, or under any provisions herein contained; this Agreement and all such provisions being for the sole and exclusive benefit of the parties hereto and the holder of the mortgages, and the Federal Housing Commissioner or his successors in office, except as in Paragraph 906 provided.”


Plaintiffs also seek recovery as a <mask> of the collective bargaining agreement between defendant unions and the public employers. Plaintiffs particularly claim the benefit of the no-strike clauses contained in those agreements. Historically, New York has been in the vanguard of the development of the third-party beneficiary doctrine. The doctrine itself had its American genesis in Lawrence v Fox (20 NY 268). Subsequent cases have applied this principle to contracts where one of the parties was a governmental entity. (See, e.g., Pond v New Rochelle Water Co., 183 NY 330; Kornblut v Chevron Oil Co., 62 AD2d 831, affd 48 NY2d 853.) Extensive research by the court has failed to disclose any New York case where a public sector union breached an explicit no-strike clause of a contract which explicitly referred to protecting the interests of those who utilize the public service. In this regard, the facts before the court are highly unusual.


“One is an intended beneficiary if one’s right to performance is ‘appropriate to effectuate the intention of the parties’ to the contract and either the performance will satisfy a money debt obligation of the promisee to the beneficiary or ‘the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.” (See Edge Mgt. Consulting, Inc. v Blank, 25 AD3d 364, 368 [1st Dept 2006] [emphasis added].) Additionally, “the parties’ intent to benefit the third party must be apparent from the face of the contract.” (LaSalle Natl. Bank v Ernst & Young, 285 AD2d 101, 108 [1st Dept 2001]; see also U.S. Bank N.A. v GreenPoint Mtge. Funding, Inc., 105 AD3d 639, 640 [1st Dept 2013] [dismissing <mask> claim because of “the absence of any clear language on the face of the (contracts)”].) “Absent clear contractual language evincing such intent, New York courts have demonstrated a reluctance to interpret circumstances to construe such an intent.” (LaSalle, 285 AD2d at 108-109, citing Fourth Ocean Putnam Corp. v Interstate Wrecking Co., 66 NY2d 38, 45 [1985].) Most important, a third-party beneficiary “has no greater rights or remedies than the direct parties to [a contract].” (Ambac Assur. Corp. v EMC Mtge. LLC, 39 Misc 3d 1240[A], 2013 NY Slip Op 50954[U], *4-6 [Sup Ct, NY County 2013, Ramos, J.]; BAII Banking Corp. v UPG, Inc., 985d 685, 697 [2d Cir 1993], citing Dunning v Leavitt, 85 NY 30, 35 [1881] [“it would be contrary to justice or good sense to hold that (a third-party beneficiary) should acquire a better right against the promisor than the promisee himself had”].)


Plaintiffs contentions that it should be permitted to amend the complaint to allege that Chase is a <mask> of the construction agreement and that it should be permitted to add a cause of action against Chase for unjust enrichment are also without merit. Leave to amend a pleading should be freely granted where the proposed amendment is not palpably insufficient or patently devoid of merit and will not prejudice or surprise the opposing party (see CPLR 3025 [b]; Crespo v Pucciarelli, 21 AD3d 1048, 1049 [2005]). In this case, the proposed amendments are palpably insufficient and devoid of merit. Thus, the Civil Court properly denied the branch of plaintiffs motion seeking leave to amend the complaint.


In the Matter of Chilson (28 AD2d 766) the Appellate Division, Third Department, was called upon to interpret the provisions of a separation agreement remarkably similar to the one at bar, and to decide whether it was proper for the infant <mask> to attempt to enforce directly its terms which applied to him. At issue was the payment for the cost of the infant petitioner’s college education by the estate *510of his deceased father. The Appellate Division held (supra, p 766) "[cjlearly, where as here, a child is an intended beneficiary under a separation agreement, rather than a mere incidental one, it is proper for the child to advance his claim directly through his guardian (Foreman v Foreman, 17 NY2d 274).”


The defense of Huntington based upon the agreement of the two individuals for Dean to pay rent and for the repair of equipment and supplies is likewise improperly interposed in this action. Nowhere is it alleged, nor has proof been made, that Dean itself agreed to make the payments allegedly relied upon. Additionally, the defense of the defendant Gazza that Huntington became the <mask> of an agreement between him and the plaintiff is not only conclusory but is unsupported by the evidence adduced upon the trial.


Further, it appears clearly that the court in Eden v Miller (supra) classified the corporation which was to be formed by the promisees as a third-party creditor beneñciary as distinct from a donee or incidental <mask>. "Their [promisees’] right is analogous to that of a debtor, with whom a third person has contracted to pay the debt of the creditor.” (37d at p 10; emphasis supplied.) By parity of reasoning, this court believes that in the case at bar the classification of the corporation as third-party creditor beneñciary is the correct one.


Plaintiff cross-moves for an order directing that the place of trial be retained in Queens County, on the grounds that (1) plaintiff is not bound by the venue provision of the bond, since it was not a party thereto; and (2) the convenience of parties would best be served by retaining the action in Queens. But in order to prevail in its claim against movant, plaintiff must rely upon the benefits which accrue to it by reason of the execution of the bond. It is, therefore, a <mask> (Lawrence v. Fox, 20 N. Y. 268) whose rights, as against the maker of the bond, are limited to the terms thereof. The holding in Graziano v. Indemnity Ins. Co. of North America (286 App. Div. 867) is not to the contrary. The decision, in that case, merely indicates that the provision in the bond with respect to the place of trial affects the remedy (i.e., procedural issues relating to venue) but does not limit the cause of action (i.e., substantive rights, sufficient to constitute an affirmative defense). Venue is a procedural issue and does not affect the substantive rights of the parties. Thus, there is no merit to the first ground asserted by plaintiff.


The Cooperative Corporation contends that plaintiff failed to allege that it relied on paragraph 39 to extend the mortgage at issue, that the mortgagee is not a <mask> of the lease contract between the Cooperative Corporation and the tenants, and that the mortgagee, as opposed to the receiver, may not enforce the provision* The short answer to all of these arguments is that paragraph 39 specifically provides that the mortgagee is a third-party beneficiary and, by implication, permits enforcement by the mortgagee.


It is the contention of the plaintiff that the provision of the policy, as aforesaid, was made for the benefit of the plaintiff in that she is a member of that class of "others” referred to in the policy provision. She claims that as soon as her injuries occurred in the accident giving rise to the immediate and imperative need for medical and surgical attention, her rights under the policy accrued and she, therefore, is a <mask> of the insurance contract under the principle of Lawrence v Fox (20 NY 268).


Plaintiff cannot enforce the contract between EFC and Mid-State. That contract expressly precludes enforcement by third parties (see, Fitzpatrick Constr. Corp. v County of Suffolk, 138 AD2d 446, 449-450, lv denied 73 NY2d 807). Thus, the court properly granted summary judgment dismissing the fourth, sixth and seventh causes of action in the amended complaint and properly denied leave to assert the first, third and sixth causes of action in the proposed second amended complaint. Those causes of action depend upon plaintiff’s status as a <mask> of that contract.


The most troubling part of the Federal court’s analysis is its reference to the legislative history. The court referred to Senator Williams’ floor statement in support of the conference report as supporting its conclusion. The statement, which is the only floor discussion of section 3607, in its entirety was: "Finally, I am pleased to note that the conferees did retain a provision of the Senate bill which provides a federally-sanctioned, simple and nonjudicial method by which the residents of a conversion project may void a long-term, <mask> leasing arrangement.” (126 Cong Rec 28178 [daily ed, Sept. 30, 1980].) At the outset it is not certain that the term "leasing” was even intended by the Senator, since he did not refer at all to management "contracts” which were, without doubt, the central thrust of section 3607. Further, Senator Williams’ following remarks, apparently about section 3608, show his, *818and the other Senate conferees’, great concern about abuses in self-dealing leases and their inability to get House support for anything other than limited relief for the Florida situation: "[i]t would also have been prudent to provide prospective as well as retroactive relief in situations involving unconscionable leasing arrangements” (126 Cong Rec 28179 [daily ed, Sept. 30, 1980]). Those remarks are inconsistent with a view that the bill provided for terminations of any leases without judicial scrutiny.


Tenants claim that certain of these representations were false because no part of the assessment charges received was spent on the facade repairs, that the basis of the Board’s rejection of the mortgage alternative was unreasonable and contrary to the *30cooperative’s best interests, that the facade work was premature, and that the special assessment was a pretext to balance the corporation’s operating budget. However, the broad financial management authority granted to the Board in the bylaws and proprietary leases clearly includes the determinations made by the Board, and there is no claim that any part of the funds collected from the special assessment was used for any purpose other than the furtherance of the cooperative’s legitimate interests. Whatever tenants’ claims as to the wisdom of the Board’s decisions, they are clearly authorized by the bylaws and proprietary leases. Even if, as tenants claim, the assessment served only to cure a budgetary shortfall or a depletion of the cooperative’s capital reserves as a result of ongoing facade work expenses throughout 2010, the assessment represents merely an indirect financing of the facade repairs. Absent proof sufficient to establish a triable issue of fraud, <mask>, unconscionability, or other action “taken without notice or consideration of the relevant facts” (Matter of Levandusky, 75 NY2d at 540), the Board’s decisions are insulated from judicial scrutiny by the business judgment rule. Thus, tenants failed to “overcome the presumption that the directors exercised their honest judgment to promote the lawful and legitimate interests of the corporation” (Horwitz v 1025 Fifth Ave., Inc., 7 AD3d 461, 462 [2004]).


Brown asserts no legitimate basis upon which to claim that the probate court erred in failing to award him attorneys' fees in this case. Again, the court did not find that the proposed distribution plan "violated the prohibition against <mask>," and its rejection of the proposed plan does not automatically equate to such a finding. Second, Brown does not establish that he is entitled to his attorneys' fees in this case under the 2010 Arbitration Agreement between himself and his sister, as he suggests.20


The guardian’s position is that the executor sold the stock at a price substantially below its fair value and that the agreement is ambiguous, making it unclear at what price the parties intended the stock to be sold. The guardian further argues because the executor was in a position of <mask> that approval of the court was required prior to the sale.


This rule, however, is not applicable to accounting proceedings where facts are not sufficiently disclosed in the account to put the parties on notice that there has been <mask>. (Matter of L. I. L. & T. Co. [In re Garretson], 92 App. Div. 1 [2d Dept., 1904], affd. on opinion below 179 N. Y. 520.) In such instances the decree judicially settling such account will not be res judicata as to matters not adequately disclosed upon a subsequent accounting.


A power of attorney, no matter how broadly drawn, cannot be held to encompass an authorization to the attorney in fact to make a gift to himself of the principal’s property. Such a gift carries with it a presumption of impropriety and <mask>, a presumption which can be overcome only with the clearest shewing of intent on the part of the principal to make the gift. Not having overcome this presumption, it is evident that respondent breached his fiduciary duty to the decedent when he made a gift to himself of one half of her estate.


The determination of what constitutes adequate disclosure in an accounting is not a purely mechanical procedure. What is called for is not only a factual description but disclosure which reenforces the special rules governing the duties and powers of the fiduciary. For example, in Matter of Chapin (171 Misc 783, supra) the issue was whether the beneficiaries of a trust could object to the trustee’s investment in a participation in a bond and mortgage on the ground it was not a legal investment, despite the fact that this purchase had been set forth in a prior judicial accounting, where its validity was not challenged. Surrogate Foley held that this objection was precluded by the prior decree because the investment had been reported "with sufficient particularity to apprise the persons interested in the estate as to the nature of it” (supra, at 784). He distinguished a line of cases in which an accounting decree was not preclusive because the acts of the trustees "constituted a breach of trust” (at 785). (Matter of Long Is. Loan & Trust Co., 92 App Div 1, affd 179 NY 520; Matter of Schmidt, 163 Misc 610.) In those cases the prior account had set forth the trustee’s investments but failed to reveal that their purchase was tainted by the trustee’s <mask>.1


Much is contained in the various affidavits as to the valuation of the paintings involved in the contract of sale and as to the allegedly excessive amount of commissions fixed in the consignment contract. Were an element of <mask> absent from the transaction, the question of valuation and excessive commissions ordinarily would be disposed of in an accounting proceeding but, if self-dealing is present, immediate action by the court is required for the protection of the estate and questions of valuation and terms may not be a determining factor. “ [W]hen the trustee has a selfish interest which may be served, the law does not stop to inquire whether the trustee’s action or failure to act has been unfairly influenced. It stops the inquiry when the relation is disclosed and sets aside the transaction or refuses to enforce it, and in a proper case, surcharges the trustee as for an unauthorized investment. It is only by rigid adherence to these principles that all temptation can be removed from one acting as a fiduciary to serve his own interest when in conflict with the obligations of his trust.” (City Bank Farmers Trust Co. v. Cannon, 291 N. Y. 125, 132; see, also, Matter of People [Bond & Mtge. Guar. Co.], 303 N. Y. 423).


Plaintiff, a former member of the board of directors of the defendant cooperative corporation, is seeking to collect the balance of a brokerage commission due under a written commission agreement, signed by the president of the defendant cooperative corporation. The prior decision and order of this court (see Strax v Murray Hill Mews Owners Corp., NYLJ, Dec. 8, 1995, at 30, col 4), as well as the subsequent decision of the Civil Court dismissing the defendant’s claims of overreaching, bad faith, <mask>, breach of fiduciary duty, conflict of interest and unclean hands, preclude the argument that there are any legal impediments that would prevent plaintiff, an attorney and director, from entering into a commission agreement with the cooperative corporation, nor were such impediments demonstrated upon the retrial.


Furthermore, the operating agreement must be interpreted in light of common understandings in corporate law. Although the Company was established as a limited liability company rather than as a corporation, we interpret the establishment of a formal board as a choice by the Company to organize itself according to the ordinary rules of a board of directors. (See Friedman et al., Cal. Practice Guide: Corporations (The Rutter Group 2017) ¶ 2:36.18, p. 2-16.) Ordinarily, a majority shareholder who has the authority to appoint a majority *504of the board of directors may make decisions despite the objection of a minority shareholder. If the Gurneys' interpretation were correct, that rule would be flipped on its head, with essentially no recourse for the *33majority to assert its authority. Under their interpretation, the Gurneys could never be removed from managing the Company, regardless of any bad behavior on their part or the terms of their employment. Even if the Gurneys had already breached their duty of loyalty by entering into a <mask> transaction to benefit themselves at the expense of the Company and ITV, the remaining board members would have no means of preventing the Gurneys from continuing indefinitely to operate the Company, except by dissolving the Company.


In objection 16 it is asserted that the affidavit of mailing of notices, in compliance with paragraph (1) of subdivision 12 of the statute is defective because it states a conclusion of law rather than the facts of the mailing. The affidavit incorporates by reference the names and addresses appearing on the list required to be filed by subdivision 12 of the statute, and which list was in fact duly filed herein. The objection is, therefore, without merit. Objection 5 also relates to said list, the objection being that it fails to show the nature of the interests of the persons named and the classification of paragraph (1) of subdivision 12 in which they fall. The statute does not require such showing. Although such information might save time for the trustee and the special guardians upon the accounting, it is within the discretion of the trustee whether to insert it in the list. The objection (17) that the publication was defective because of a printer’s error in the name “ Hardenbrook ”, it having been misspelled as “ Hardenbreek ”, is likewise rejected, particularly since in the same clause the same family name is correctly printed. Objection 18, that the permission of the banking board to the trustee to establish the fund, and the authorization of the Board of Governors of the Federal Reserve System and of the banking board authorizing investments in the sum of $50,000 have not *1018been filed, is likewise dismissed as not required. The certification made by the banking board pursuant to subdivision 13 of the statute is surely sufficient evidence that the fund has the approval of that board. The further objection contained in number 18 that there is no affidavit filed on behalf of the trustee showing that the trustee has complied with subdivision 4 of the statute and has made no investment amounting to <mask>, etc., was well taken, but the affidavit has since been filed. Objection 19, that the trustee has filed no affidavit concerning its mailing of notices of the first investment under subdivision 9 of the statute is rejected because such notice is not jurisdictional, as hereinbefore discussed.


Plaintiffs allege that Thain engaged in <mask> by putting the financial interests of himself and Goldman above that of the NYSE seatholders. Further, plaintiffs allege that Thain stands to receive a direct personal financial benefit from the unfair terms of the merger, and given his large financial stakes in Goldman. Plaintiffs additionally maintain that Thain effectively dominated and controlled the Board, and as a consequence, the Board merely “passively rubber-stamped” the transaction. Moreover, plaintiffs maintain, in tandem with allegations of Thain’s domination, that the majority of the Board was incapable of exercising independent business judgment given their extensive business and employment relations with Goldman and other financial institutions on Wall Street with large ownership interests in Archipelago, JP Morgan and Merrill Lynch.


In prior cases, whenever limited letters have been issued under the amendments (see, e.g., Matter of Teah, 166 Misc 2d 976 [1996]; Matter of Davidson, 177 Misc 2d 928 [1998]; Matter of Vasquez, 162 Misc 2d 184 [1994]), section 702 has been used to protect the estate from the prospect of <mask> by replacing the acting fiduciary in a limited respect. In those cases, the fiduciary was, in effect, involuntarily displaced with respect to the transaction or proceeding in question. The present application is different, however, in that the acting fiduciaries themselves are seeking, rather than opposing, the issuance of limited letters to a cofiduciary under section 702.


The petitioner also urges that the trust should be set aside because the trustees specifically violated the terms of the trust. Article third of the trust provides, in pertinent part, that “the Trustees are prohibited from engaging in any act of <mask> (as defined in § 4941[d])”. It is uncontroverted that by letter dated November 21, 1980, ACN and his wife as cotrustees wrote to themselves and offered to sell the assets listed in the trust agreement at the values specified in the agreement, to wit, $2,000,000. In payment, the purchasers were to give a demand promissory note with interest at 10% per annum payable quarterly to the cotrustees. On the same date, ACN and his wife, as purchasers, accepted the offer of sale and executed their acceptance of the terms of the sale.


. The court does not find that the issue raised by the movants regarding the trustee’s assessment of its own risk and its efforts to obtain broad indemnification for its actions states a colorable claim of conflict or <mask>. It is clear from the December 10, 2010 letter from Bank of America to BNYM (exhibit F to Ingber aff, Jan. 28, 2013) that BNYM did not obtain indemnification beyond what was provided for under the PSAs. The December 10th letter states in relevant part: “[f]or the avoidance of doubt, nothing herein is intended to limit, modify, supersede, expand or in any way affect any indemnity rights already available to the trustee under each PSA for each Original Trust and Additional Trust.”


It was this breach of fiduciary duty and the substantial amount of <mask> by respondent as fiduciary of the decedent which has created the intolerable conflict of interest for respondent as fiduciary of the estate. An attorney in fact, in exercising the broad powers granted to him should surely be required to turn especially sharp corners in the discharge of his fiduciary responsibilities, particularly when he stands to benefit personally from his acts or dealings. Accordingly, it is the finding of this court that respondent is ineligible to act as administrator of the estate of decedent upon the ground of improvidence under SOPA 707 (subd. 1, par. [e]) and that the letters granted him should be revoked.


Two of the executors, Reis and Stamos, assert that this is not a case of <mask>. The third executor, Levine, assumes the position that the temporary restraining order should be continued in effect until the court has had an opportunity to review the agreements and that the transaction involves self-dealing on the part of Reis, and 1 ‘ potential conflict of interest of Stamos * * * (a noted painter) ” who “was considering entering into an agreement of his own with Marlborough ’ ’ which he later consummated.


The claim that the statute permits <mask>, it seems to the court, goes largely to a matter of policy, not of constitutionality, but at any rate it is unfounded in view of subdivision 4 of the statute and the construction placed thereon in Mullane *1014v. Central Hanover Tr. Co. (339 U. S. 306, 309) to wit, “ The trust company must keep fund assets separate from its own, and in its fiduciary capacity may not deal with itself or any affiliate.” (And see Matter of Bank of New York, 189 Misc. 459, 463.) The failure to require so-called “ documentary ” evidence of investments and transfers (objection 7) and of other notices thereof may affect the opportunity for self-dealing but do not amount to authorization thereof. They are regulatory matters only, and do not render the statute unconstitutional. The claim that self-interest will cause the trustee to pour all funds of small trusts into the common trust fund, so far as possible, may be true. Such seems to be the purpose of the statute. Insofar as operating costs are reduced, it is possible that the trustee may gain by a reduction of its own expenses, but the fund will gain also. If the fund produces a better return, the trustee will gain only insofar as it receives commissions on income in the underlying trusts (subd. 4), and reasonably high income upon diversified investments is certainly not to be condemned. The provision for a stated period of time between a decision to withdraw funds from the common trust fund and the time of actual withdrawal is for the protection of the beneficiaries and deprives no one of substantial rights. It is proper, regulatory legislation. (Veix v. Sixth Ward Assn., 310 U. S. 32.) The same is true with respect to the provisions for triennial accountings.


The estates are entitled to an allocation to them of an award representing the underlying value of their proportionate interest in the Phelps Can Company following its liquidation. In order to restore the beneficiaries of the constructive trust to the position they would have enjoyed had there been no <mask>, they are entitled to that portion of the Phelps’ net assets which the shares of the Bellinger and Debbie estates bore to the outstanding shares of the company stock on December 31, 1966. (Scott, Trusts [3d ed.], § 516; Joseph v. Herzig, 198 N. Y. 456; Central Manhattan Props. v. D. A. Schulte, Inc., 91 F. 2d 728; Diamond v. Oreamuno, 24 N Y 2d 494; Matter of Hubbell, 302 N. Y. 246; Ann. 47 ALR 2d 176; Matter of Bolton, 121 Misc. 51; Matter of Dupignac, 123 Misc. 21; People ex rel. Union Trust Co. v. Coleman, 126 N. Y. 433.)


Further, the court concludes that it was reasonable for counsel to opine that the advances from SRA No. 1 were not motivated by self-interest and the desire of the general partners to insulate themselves from liability under their personal guarantees. Given the facts in the case, as even plaintiff concedes, had there been a default by CTLP, it was possible but unlikely that there would have been a foreclosure. Even if there had been, the value of the premises with improvements would have satisfied any claim for a mortgage balance due, so that the likelihood of the personal guarantees being triggered was quite remote. Under these circumstances, the legitimate business purpose of SRA No. 1 in preventing default and foreclosure, and in assuring the continuation of the entire development through the means of a one-year loan, could reasonably be characterized as a sound business and economic *94measure, and not <mask>, the moneys having been fully repaid, and there being no intimation that the general partners derived any personal benefit from the transaction whatsoever, except for the theoretical avoidance of the invocation of their personal guarantees.


The “ mere fact that the trustee advanced its own money in the first place but acquired the mortgages for the purpose of distributing them among the trust estates administered by it and where only a short interval elapses between the purchase and distribution, there is not such <mask> as to make the transaction improper. The trustee would rarely be able as a practical matter to advance the money in the first place wholly out of the trust funds of the various trusts, and the advance of its own funds is made not for the purpose, of investing its own funds but for the purpose of obtaining an investment for the various trust estates.” (2 Scott on Trusts, pp. 882, 883; Matter of Coulter, 121 N. Y. S. 2d 535.) Moreover, in the administration of a number of separate funds where the aim is to keep the funds productive as steadily as possible, cash cannot be available in all participating estates on the same day. In each case the interval between closing date and complete allocation was a short one, namely, four days, eight days and fifty-eight days, respectively. In respect of the last-mentioned mortgage of $3,000,000, all but $589,900 was apportioned at once. During the same month all but $92,000 was apportioned. The balance was allocated to estates and funds by August 1st. Only by completely ignoring reality could we say that any of these purchases was made for the trust company’s own account. The only fair view of the transactions is that the trust company was engaged in combining trust funds for investment and acquired the mortgages only for the purpose of distributing them among the trusts, estates and funds.


SCPA 2301 reposes in the discretion of the Surrogate, and in the proportions fixed by him, the funds from which payment is made of allowances for the necessary services of the guardian ad litem. Generally, the rule is that a fiduciary may be surcharged with another interested party’s counsel fee where the fiduciary is guilty of misconduct that necessitated the expense. (Parker v Rogerson, 49 AD2d 689; Matter of Garvin, 256 NY 518.) However, in this case, there is no issue of any misconduct or bad faith on the part of the petitioner. The petitioner’s purchase of the estate’s interest in the subject business and property properly could be acquired by him only after court approval since as a fiduciary of the estate he could not engage in <mask>. (Matter of Rothko, supra; Matter of Scarborough Props. Corp., supra.) Although the sale was not consummated, the services of the guardian ad litem were necessary for both jurisdictional purposes in the proceeding as well as for the oversight and protection of the interests of the infant. Accordingly, such services properly are an estate expense and should be borne as such.


There can be no question that the moneys received by this respondent did not belong to him and did not represent a proper repayment of any loan made by him. There is no legal or equitable principle available to justify respondent’s act of divesting his corporation of the money returned under the contract, and converting it to his own personal use to the detriment of the rights of an existing creditor. No court would or should provide any judicial sanction for this respondent’s bold act of *397stripping his corporation of the assets which it required to satisfy an existing creditor by means of acts of <mask> with himself which resulted in the diversion of corporate assets to his personal account.


Under that test the moving party has a heavy burden to show not merely that a different business decision could or should have been made by the administrator, but also that there is some actual impropriety. Thus, a lease entered into by the administrator in excess of her powers can be invalidated. (See, at 809, infra.) So, too, can a lease executed as a result of fraud or <mask> be voided. Here, the order requires specific prior court approval for a lease by the administrator, who is an occupant of the building, with herself or her family.


The record is clear and petitioners do not deny that the reason Welco relinquished control of the board in 1988 was to trigger the running of the two-year window period for the tenant-shareholders to terminate certain <mask> commercial leases of the sponsor, pursuant to section 3607 of the Condominium and Cooperative Conversion Protection and Abuse Relief Act (15 USC § 3607).


This action was brought by the Gebbie Foundation, Inc., (“ Gebbie ”), a New York membership corporation and charitable foundation, which is the legatee of the remainder of the entire residuary estate of one Marion B. Gebbie, deceased (“ Marion ”) and the legatee of one third of the residuary estate of one Geraldine G. Bellinger, deceased (“ Geraldine ”) against the defendants (other than Lefkowitz) in individual and fiduciary capacities, for a judgment based upon <mask> and profiting; the plaintiffs’ complaint alleging self-dealing and profiting in connection with the sale of 125 shares of stock of the defendant, Phelps Can Company (“ Phelps ”) from each .of the estates of the aforesaid decedents, and demanding that the defendants be declared constructive trustees, account, and pay over to the estates their proper share and/or the aforesaid shares of stock.


Examination of subsequent decisions which have followed Matter of L. I. L. & T. Co. (In re Garretson), (supra) in setting aside decrees settling prior accounts for the purpose of relitigating issues raised by transactions involving <mask> discloses that the results were attained because the prior accounts either misdescribed the nature of the property, or misrepresented it, or wholly failed to disclose any fact with respect to the origin of the investment. Thus in Matter of Denbosky (245 App. Div. 93) the prior account purported to show the deposit of an amount in cash in satisfaction of a legacy, when in fact there had been invested in a mortgage certificate an equivalent amount. In Matter of Schmidt (163 Misc. 156) the investment in question was erroneously described in the prior account as an interest in a mortgage whereas the fact was that it was a whole mortgage. In Matter of Curtiss (261 App. Div. 964, affd. 286 N. Y. 716) the trustee had issued certificates of participation in whole mortgages, which it held individually, to the trusts involved. Thereafter it placed a second mortgage upon the same property, against which it issued further participation certificates, some of which it likewise assigned to the trusts. In the prior account the certificates were described as “ shares and participations in bonds and .first mortgages * * *, said shares and participations being coordinate in lien with other participations issued therein and subject to no prior interest *849* * The second, mortgage had been placed without the knowledge or consent of the certificate holders and without consolidating the two mortgages into a first lien. It was claimed therefore that the trustee had diminished the security of' the certificate holders in the first mortgage and jeopardized the investment. The certificate holders in the second mortgage contended that they participated in a subordinate mortgage instead of a prior mortgage as required by law. No disclosure of these facts was made by the account and it was properly held that the prior decree was not res judicata as to these investments. In Matter of Ryan (181 Misc. 566, affd. 264 App. Div. 704, affd. 291 N. Y. 376), cited by the respondents herein, the questioned investments in whole mortgages were described in the prior account as: “ Bd. & Mtge.” — name of mortgagor in each instance — amount of mortgage. In fact each whole mortgage had been purchased by the trustee from itself and the guarantee of its affiliate corporation obtained through the medium of bookkeeping entries, none of which was disclosed by the account, nor was any fact mentioned to put the beneficiaries on notice. Surrogate Delehauty granted vacatur of the prior decrees to the extent required to permit determination of the legality of such investments.


I.A crucial component of the foreclosure process which is often conducted as an ex parte proceeding is the referee’s accounting — one that is done prejudgment providing a detailed snapshot of the mortgage debt. This calculation done by an impartial appointee of the court ensures the reliability and fairness of the foreclosure proceeding. It serves the function of accurately advising the court of the costs and disbursements expended during the process, thus enabling the court to determine whether the charges were taken in consonance with the law and to ensure that there has been no overreaching. An accurate, impartial, transparent accounting becomes particularly important when the purchaser is not a third party but is the foreclosing mortgage holder and the potential for <mask> arises.


Movant contends that the Board of Trustees of the Bethpage Jewish Community Center failed to disclose other consolidation offers and failed to explore other financial alternatives. The board of a not-for-profit corporation enjoys the benefit of the business judgment rule which bars judicial review of actions taken in good faith and in the exercise of honest judgment. (Consumers Union of U.S., Inc. v State of New York, 5 NY3d 327, 360 [2005].) Absent a showing of bad faith in the form of <mask> fraud, or unconscionability, a court will not overturn or invalidate the decisions made by directors. (Dennis v Buffalo Fine Arts Academy, 15 Misc 3d 1106[A], 2007 NY Slip Op 50520[U] [Sup Ct, Erie County 2007].) There is no reason why the business judgment rule should not apply here and there has been no allegation of bad faith.


Initially the court must determine the appropriate injunctive standard. Plaintiff seeks an injunction to maintain the status quo and toll the termination notice based on the doctrine established in First Natl. Stores v Yellowstone Shopping Center (21 NY2d 630 [1968]). The "Yellowstone doctrine”, as it became known, allows injunctive relief in landlord-tenant matters without regard to the likelihood of success on the merits in order to protect a tenant’s leasehold (see, Post v 120 E. End Ave. Corp., 62 NY2d 19 [1984]; Herzfeld & Stern v Ironwood Realty Corp., 102 AD2d 737 [1st Dept 1984]). The Yellowstone doctrine recognizes the unique nature of the leasehold. It allows the tenant to cure his default under the lease without jeopardizing his rental lease. The Yellowstone injunction is not applicable where there is no right to cure (Podolsky v Hoffman, 82 AD2d 763 [1st Dept 1981]; Wuertz v Cowne, 65 AD2d 528 [1st Dept 1978]). Here, Park East, the cooperative corporation, seeks to terminate the lease as <mask> pursuant to the Condominium Act. This defect is not capable of being cured and accordingly the court may not evaluate the request for injunctive relief based on the Yellowstone doctrine, the purpose of which is to permit a tenant to cure defects.


Finally, there is no suggestion of fraud or unconscionability in the transaction. “[A]bsent claims of fraud, <mask>, unconscionability or other misconduct, the court should apply the business judgment rule and should limit its inquiry to whether the action was authorized and whether it was taken in good faith and in furtherance, of the [company’s] legitimate interests.” (Gillman v Pebble Cove Home Owners Assn., 154 AD2d 508, 508-509 [2d Dept 1989].) The court’s review of the voluminous papers submitted on these motions uncovers no credible evidence of fraud, unconscionability or self-dealing sufficient to create a question of fact on this issue.


The executors claim that they were obliged to liquidate the corporation in order to enable them to acquire the necessary *747funds to set up reserves for the various trusts under the will. But they had the power to distribute in kind and they had other wide powers under the will whereby the trusts could be set up pending acquisition of funds if and when necessary for reinvestment. Moreover the cash condition of the corporation which had the sum of $313,303 on deposit indicated no difficulty in that respect, and in fact none arose. Even if speedy liquidation were required under existing special circumstances, the law does not tolerate any exception to the absolute prohibition against <mask> by a fiduciary with which the executors are charged herein by objectants (Matter of Kilmer, 187 Misc. 121).


The trial court found that Fudge failed in her burden of proving that the disputed transactions were either illegal or improper and that she should be reimbursed for them. The court also found that the dissolution agreement clearly resolved the claims. Fudge claims that Parks, as a fiduciary, owed a duty to account for the transactions and therefore bore the burden of proving that the transactions were not the result <mask>. Her argument fails in several respects.


Plaintiffs contention that defendant’s use of the loan proceeds to pay down the Modern loan, and reduce its risk-exposure, was an act of <mask> and violated the terms of the loan similarly has no merit. Plaintiffs maintain defendant withheld $85,000 from the loan proceeds and used $75,000 of the loan proceeds to pay down the Modern loan. However, a review of the record indicates that defendant discovered a mistake in Modern’s equipment appraisal before the closing for the Modern loan. Specifically, defendant “double count[ed]” the collateral value of the Modern loan by $75,000 because a truck that Lammy intended to purchase with the loan proceeds was included in the collateral value when the loan was approved. To correct this mistake and balance the loan amount and collateral value, defendant determined it would keep the Modern loan amount as is and use $75,000 of the loan proceeds to pay down the Modern loan at closing. Defendant indicated these changes in the disbursement request and authorization at closing of the Modern loan. Moreover, the disbursement request and authorization plainly showed a partial disbursement to Lammy for a vehicle purchase in the amount of $85,913.74. Lammy agreed and signed the disbursement request and authorization, without objection, indicating the information contained in the disbursement request and authorization was “true and correct and that there ha[d] been no material adverse change in borrower’s financial condition[.]” One’s “mere failure to read an agreement is not a defense in an action to enforce the terms of a written agreement.” Id. Because plaintiffs failed to demonstrate defendant engaged in a material misrepresentation regarding the disbursement of the Modern loan, the trial did not err in granting summary disposition of plaintiffs’ fraud claim. Roberts, 280 Mich App at 403.


Citing Harman v. City and County of San Francisco (2006) 136 Cal.App.4th 1279, 39 Cal.Rptr.3d 589, Thayer , supra , 92 Cal.App.4th 819, 112 Cal.Rptr.2d 284, and Meister v. Regents of University of California (1998) 67 Cal.App.4th 437, 78 Cal.Rptr.2d 913, FCA argues that the trial court could properly look to evidence of spurned settlement offers to determine if subsequently incurred attorney fees were in fact reasonably incurred. They acknowledge the cases such as these typically involve instances where the plaintiff obtains a less favorable result at trial, but maintain we should read them to allow a court to consider rejected settlement offers "whenever the post-settlement litigation produces a huge disparity between the legal fees incurred and the recovery obtained ." FCA argues we should not look to the fact plaintiffs in the end obtained double the amount of their settlement offers, but focus on the "valued added " by plaintiffs' counsel in "running up nearly $90,000 in fees." They suggest plaintiffs spurned "good faith, reasonable settlement offers" and *848characterize plaintiffs' counsel as engaging in "<mask>," "patent over-lawyering," "over-staff[ing]," and seeking "overblown fees."


The Federal court’s conclusion that the distinction between leases and contracts exalts form over substance and thwarts the congressional purpose assumes that the purpose was to preclude the <mask> of sponsors with the cooperative. As previously noted (supra, at 815-816), there is nothing in the legislative history to support such a conclusion or that it was even considered. There is no doubt that a cooperative or condominium conversion is a complex project involving legal decisions as to the form of the project and the subsidiary *819rights involved. Congress did not seek to regulate all of these issues. It is clear that if the sponsor were to create a condominium and retain a fee rather than a leasehold interest in the store, laundry or garage space, the remaining part of the project, whether a cooperative or condominium, would have no claim under the Act; there would be no "lease” or "contract” to terminate. Thus the form of the transaction will produce different results even under the Federal court’s analysis. While the circuit is correct that "a lease, in substance, may be nothing more than a contract of operation” (815d, at 198, supra), the court should reserve for subsequent consideration the question of interpretation presented by such a document. A lease of commercial store space does not present the issue.


First, the probate court did not find that the Trustees' actions "violated the prohibition against <mask>." Nor did its rejection of the Trustees' proposed distribution plan equate to such a finding.17 This claim apparently relates to the Trustees' request for an offset to Brown's share of the Trusts' assets for "the attorneys' fees, expenses and costs which [he] unilaterally cost the [Estate] over the last three years through his litigious efforts [as to the] Estate." The probate court granted an offset of the attorneys' fees incurred in the Probate Case. Pursuant to Missouri law, and under the terms of the Trusts, the Trustees were entitled to such an offset.18


It is not mere questions of value that concern the special guardian. The issue is raised as to whether in those acquisitions made for the Van Deusen trusts from other trusts of which the petitioner was trustee or from the “ T-l ” account, the petitioner may have been shifting to the Van Deusen trusts the burden of a loss which it had already sustained in these investments. If the trustee sought to conceal a loss by shifting this burden to the Van Deusen trusts, this would be illicit <mask> for which the petitioner would be liable. It is therefore relevant to determine whether the trustee acted in good faith in acquiring for the Van Deusen trusts these mortgages and mortgage participations from itself. It is appropriate to ascertain what evidence the petitioner had as to the value of these investments at the time they were made or whether reasonable efforts were made by it to determine this value.


“[A] fiduciary owes a duty of undivided and undiluted loyalty to those whose interests the fiduciary is to protect. This is a sensitive and ‘inflexible’ rule of fidelity, barring not only blatant <mask>, but also requiring avoidance of situations in which a fiduciary’s personal interest possibly conflicts with the interest of those owed a fiduciary duty” (Birnbaum v Birnbaum, 73 NY2d 461, 466 [1989] [citations omitted], rearg denied 74 NY2d 843 [1989]). Thus, there is an obligation of utmost candor (see Alpert, 63 NY2d at 569; Kavanaugh v Kavanaugh Knitting Co., 226 NY 185, 193 [1919]), strictly obligating a fiduciary “to make a full disclosure of any and all material facts within his or her knowledge relating to a contemplated transaction with the other party to the relationship” (60A NY Jur 2d, Fraud and Deceit § 99). “[W]hen a fiduciary, in furtherance of its individual interests, deals with the beneficiary of the duty in a matter relating to the fiduciary relationship, the fiduciary is strictly obligated to make ‘full disclosure’ of all material facts” (Blue Chip, 299 AD2d at 279, quoting Birnbaum, 73 NY2d at 466; see Arlinghaus v Ritenour, 622d 629, 636-637 [2d Cir 1980], cert denied 449 US 1013 [1980]; 3A Fletcher, Cyclopedia of the Law of Private Corporations § 1171 [1931]).


“defendant violated his trust by <mask> and other misconduct in which he acted with a conflict of interest, both as trustee and as chief executive officer and a director of the corporation, all of which was inimical to the interests of the trust beneficiaries. This conduct was specifically alleged to have related to defendant’s (1) proposing and obtaining board of directors’ approval of salary increases for himself and [a cotrustee], almost doubling their annual remuneration in the space of three years, (2) obtaining similar approval of long-term employment *180contracts for various corporate officers which would protect and reward them financially in the event of the corporation’s acquisition by outside companies, and (3) handling of various alternative proposals for outright outsider acquisition of the corporation or a leveraged buyout of it participated in by present corporate management, in all of which defendant allegedly discouraged consideration of merger possibilities which would have been favorable to stockholders but less favorable to management.” (Id. at 907-908.) Thus, in Hoopes, the disclosures directly correlated to the allegations of self-dealing and conflict of interest and the fiduciary exception was not applied to compel disclosure of communications regarding any other topics.


Counsel for the principal group of objectants have very rigorously argued in their voluminous briefs for a modification of the referee’s report. None of the arguments has any merit in law and the authorities cited in them have no direct application to the facts of the present proceeding. They seek a determination which would form a basis of surcharge not only in this estate, but in other estates, for negligence in the placement of the mortgage loan. The loan aggregated $2,800,000 and was allotted by participations to various trusts, testamentary, inter vivos and personal, and to the custodian accounts of individuals. If negligence did exist the amount of the liability would not deter the enforcement of a surcharge. In the absence of negligence, however, the courts should not be asked to strain to mulct the stockholders of the trustee in an amount of such magnitude. It should be noted that the contention of counsel for the objectants that these participations were bought directly from the corporate trustee is not substantiated by the evidence. There was no <mask> in the accepted use of that term. The purchase was from the trustee, not as a bank or trust company, but as a trustee of other estates which held the specific securities purchased for this estate. There is no rule which prohibits a fiduciary of one estate from buying from itself as trustee of another estate, government or State or municipal bonds, or mortgages or other securities at a fair value.


The petitioner replies that questions of mismanagement, negligence and of value are foreclosed by the decision of this court which rejected all such objections to the accounts for *175periods prior to this accounting, except as to <mask>. The petitioner further contends that this method of acquiring mortgages and allocating participations to trusts or the transfer of such participations from one trust to another does not constitute wrongful self-dealing, citing Matter of Union Trust Co. (219 N. Y. 514).


First, the trial court was presented with sufficient evidence from which to conclude that Parks did not engage in <mask>. The court heard conflicting evidence concerning the nature of the checks written, whether the checks pertained to personal or partnership interests, and whether appropriate reimbursements were made. The court weighed the conflicting evidence and found that Fudge had failed to prove that these transactions were improper. It is within the sole province of the fact-finder to weigh credibility and resolve disputed facts. Simmons v. Dixon , 96 Ark. App. 260, 267, 240 S.W.3d 608, 613 (2006). To reverse on this basis would be to require this court to act as a super fact-finder or to second-guess the trial court's credibility determination, which is not our function. Based on the evidence presented, *728we are not left with a firm conviction that a mistake was made.


The;fact that it was Reis who occupied the position of <mask> does not excuse the other two executors who were parties to the contract, although a different remedy may be applied if at a trial different degrees of fault may be found (Wilmerding v. McKesson, 103 N. Y. 329, 341), assuming any wrongdoing at all will be found. In Matter of Durston (297 N. Y. 64, 72-73) it *325was said: “It is contended by the executrix of the estate of Edward L. Robertson, who before his death was one of the trustees, that her testator’s estate is not subject to a surcharge because his action in approving the retention of shares of the Trust Company and the acquisition of additional shares was entirely disinterested and uninfluenced by any consideration other than the interest of the beneficiaries. That was true, but it is not questioned that he gave his approval to the retention of the .shares of the Trust Company held by the testator and to the acquisition of additional shares as well. Under these circumstances his liability as a cotrustee concurring in and approving illegal investments may not be avoided because he was personally uninfluenced by the conflicting interests to which his cotrustees were subjected. The basis of his liability is found in his approval of and acquiescence in such investments which resulted in loss to the beneficiaries. When a cotrustee approves a prohibited investment and such losses result, his liability is clear.”


The IAS Court properly dismissed the within petition seeking to inter alia, annul the determination of respondents refusing to approve petitioner’s application to purchase the shares representing an interest in the cooperative apartment. Absent illegal discrimination, the respondent members of the board of directors of the respondent cooperative corporation had the right to withhold their approval of petitioners’ purchase for any reason or no reason (Rossi v Simms, 119 AD2d 137, 140). The so-called business judgment rule (see, Matter of Levandusky v One Fifth Ave. Apt. Corp., 75 NY2d 530, 537-538) permits judicial inquiry into claims of fraud or <mask> by board members (see, Schoninger v Yardarm Beach Homeowners’ Assn., 134 AD2d 1, 10) but only where such claims have a basis. The petitioners were required to submit evidence that the board did not act in the best interest of . the shareholders (see, Straus v 345 E. 73 Owners Corp., 181 AD2d *208483, 488). The IAS Court correctly determined that petitioners did not. We have considered petitioners’ remaining arguments, and find them to be without merit. Concur—Ellerin, J. P., Rubin, Ross, Nardelli and Tom, JJ.


Thomas Neary, Salvatore Benevento, and Carmel Salerno’s third counterclaim alleges a breach of fiduciary duty by Raymond J. McRory, Esq. However, Raymond J. McRory, Esq. is not a party to this action. While this counterclaim also alleges claims of fraud, <mask>, and waste with respect to actions taken by Arthur Burns, Thomas Neary, Salvatore Benevento, and Carmel Salerno have not joined Arthur Burns, as the manager of 363-367 Neptune Avenue, LLC, as a defendant on this counterclaim (see Limited Liability Company Law § 409 [a]; compare Cottone v Selective Surfaces, Inc., 68 AD3d 1038, 1039 [2009]). Thus, this counterclaim must be dismissed.


An effort is made to characterize this situation as not involving <mask>, by comparing the position of Reis to that of a small minority corporate shareholder who has no impact upon the functioning of a corporation and comparatively little to gain financially from any particular transaction. It is true that Reis is not shown to be a shareholder in either gallery, but he is an officer and director of Marlborough Gallery, Inc. and in such capacity he has a voice in the management of the corporation and owes an obligation to the corporation to seek financial advantage for it. This obligation to the corporation, coupled with a possibility of enhancing his own position in the corporation structure, could impel a corporate director to seek every advantage for the company and would be in direct conflict with the obligation which a fiduciary owes to obtain the most advantages for the estate he represents.


In Point XI , Brown contends that the trial court erred in denying his attorneys' fees, in that sufficient evidence established that he was entitled to such fees, because he "demonstrated [that] he was forced to respond to the Trustees' two proposed distribution plans and the court found both plans violated the prohibition *638against <mask> thereby failing as a matter of law."


From the presentation thus far, the issues for plenary trial appear to be: (A) have the executors with the galleries engaged in disloyal <mask>; (B) should the agreements be set aside; (C) what, if any, damage has the estate suffered and how can it be indemnified; (D) should the executors be removed, suspended or otherwise controlled and dealt with? The temporary injunction should preserve the status quo by ensuring that all options for final relief are reasonably preserved for the court if needed after trial.


I cannot say, as of now, as the plaintiffs charge, that these are “dramatic” examples of waste. That depends, respectively, on the price and use of the flowers, the use of and necessity for the tickers, whether the vehicle involved was used for personal as distinguished from company purposes, and, as to Shahmoon charging the company for the expense of his wife’s companionship on his business and convention trips, the amount thereof needs ascertainment. This much is clear: Undisclosed fringe benefits are forbidden to a fiduciary; <mask> by a trustee is looked upon askance by the courts; a publicly-held stock corporation is not the private preserve of its principal stockholder; the purchase of facilities or services, at company expense, but put to personal use, is improper. With these precepts in mind, the reference hereinbefore directed will also include these issues, as to which, after accounting and testimony, the Referee will similarly report thereon with his recommendations.


*731Moreover, in view of the fact that these conversions involve the investment of entrusted assets in the trustees’ affiliated mutual funds, the loss of safeguards under section 100-c of the Banking Law is particularly troubling. In other words, the element of <mask> suggests a need for greater, not less, oversight even though the banks are authorized to make such investments. The statute conferring such authority (EPTL 11-2.3 [d]) had a well defined purpose, namely, to enable banks to compete with securities firms by allowing the banks to choose a more easily administered common investment vehicle (the mutual fund) over another available option (the common trust fund) (see Senate and Assembly Sponsors’ Mems in Support, Bill Jacket, L 1994, ch 609). The terms and history of such statute are, however, silent as to the consequence of such statutory largesse where a bank chooses to opt out of a common trust and into direct investment in an affiliated mutual fund, namely, the loss of the periodic judicial accountings that had protected the beneficiaries of the underlying trusts. Simply put, such loss appears to have been an unintended by-product of section 11-2.3 (d) and may be too high a price to pay for the salutary objective that inspired its enactment.


The conclusion is that the appearance of <mask> is so strong in this case that the court could not permit performance under the contracts without judicial supervision and permission at this time. The court is not prepared to invalidate the contracts without affording the parties a full hearing, but the situation is one which calls for relief and, accordingly, the existing restraint will be continued subject to the conditions and modifications set forth below. The protection of the estate warrants this, and at the hearing on July 18 the respondent galleries were not able to state ¡that the sale of a particular painting had been either lost or prejudiced by the restraint which then had been in effect for some weeks. It is to the advantage of all parties that they avail themselves of an early hearing of .this matter at which all facts may be disclosed.