The contract must meet certain other criteria such as exceeding three years and be between the developer and the association of unit owners; procedurally, termination requires the vote of two thirds of the unit owners other than the developer and must occur within two years of the unit owners gaining a specified form of control of the project (15 USC § 3607 [a], [b], [c]). The Senate committee report contains a single sentence describing the meaning of what was then-section 509 of S. 2719: "Section 509 provides a means by which the unit owners of a conversion project may terminate a long-term, <mask> contractual arrangement without having to resort to judicial action” (see, S Rep No. 96-736, 96th Cong, 2d Sess, 51, 77, reprinted in 1980 US Code Cong & Admin News 3506, 3558, 3584). The only substantive change adopted by the conference was to lengthen the threshold *813period of the contract to three years from the two in the Senate version (see, HR Conf Rep No. 96-1420, 96 Cong, 2d Sess, 168, reprinted in 1980 US Code Cong & Admin News 3617, 3713). Representative Ashley noted during the floor debate of the conference report that most of the Senate’s efforts to nationalize the cooperative and condominium conversion process had been eliminated. "The conference report narrowly addresses only the most egregious problems. It provides a process for condominium and cooperative unit owners to terminate self-dealing contracts with developers who, after the date of enactment, converted multifamily rental buildings into condominium or cooperative projects” (126 Cong Rec 28444 [daily ed, Sept. 30, 1980]). Indeed, Senator Williams lamented the loss of an opportunity to nationalize tenant rights in the conversion process (36 Cong Rec 28178 [daily ed, Sept. 30, 1980]).


Ira Gammerman, J. This motion is brought to dismiss the consolidated class action complaint brought by individual depositors of defendant East New York Savings Bank (East New York), objecting to the recent conversion of East New York from a mutual savings bank to a stock corporation and its subsequent merger with defendant First Empire State Corporation (First Empire). It is plaintiffs’ contention that they, as depositors of East New York, were entitled to profit from the conversion and that their failure to do so was caused by fraud and <mask> on the part of the defendants. In their complaint plaintiffs seek a rescission of the conversion-merger plan, or, alternatively, money damages in an unspecified amount.


The financial problems of the Company arose before plaintiffs became officers, and appear to be due to the fact that the "sponsor defendants” continue to be in control of the Company’s Board, despite the claim that the sponsor ceased to control the Company in 1989. The allegations of <mask> and violations of fiduciary duty appear to be well founded. For example, defendants do not dispute that seven rent-stabilized cooperative apartments were transferred by the sponsor to aspiring actor defendant, Christopher Brady, who defaulted on the maintenance payments. Moreover, while Brady was in default, "sponsor defendants” forwarded him the rent collected from the rent-stabilized tenants, thus depriving the Company of funds to which it was entitled. Thus, the actions of the defendants cannot be used to attribute fault to the Company in order to sustain the sponsor’s wraparound mortgage.


It appears from the cases and authorities that appreciation damages should be granted at least where the breach of fiduciary duty is accomplished in bad faith, or where the *877fiduciary is guilty of fraud, disloyalty or <mask>, or where the fiduciary was under a duty to retain assets. Such damages may also be awarded against other parties who knowingly participated in such a breach of fiduciary duty. (Hart v Ten Eyck, 2 Johns Ch 62, 116; Hopkins v Loeber, supra; McKim v Hibbard, supra; 3 Scott, Trusts [3d ed], §§ 206, 291.2; Restatement, Trusts 2d, § 206; 25 U Chi L Rev 389, 392; 34 NYLJ L Rev 596; 4 UCLA L Rev 314). While such damages might not be absolutely necessary for adequate protection of the beneficiary, the awarding of such consequential damages is justified as a deterrent to future conduct of this nature by fiduciaries. (Hart v Ten Eyck, supra; cf. Diamond v Oreamuno, 24 NY2d 494.)


Walter consistently maintained at the trial that every transaction involving W.E.D. was fair. Here, as in Matter of Lasser (supra), he is unable to point to any time period when he repudiated his assumed role of managing this substantial asset of the estate. Accordingly, it is in no way unfair or violative of the Statute of Limitations to now require him to account for his stewardship of W.E.D. Holding Corp. (Matter of King, supra; Matter of Lasser, supra). Moreover, in those instances where the fiduciary of an estate is able to gain control over a corporation as a result of the estate’s ownership interest in the corporation, the fiduciary is judged by the standards of a trustee rather than the "business judgment rule” which is usually applied to the conduct of a corporate officer and directors, and the beneficiaries of the estate may seek redress directly against the fiduciary rather than resorting to a shareholder’s derivative action (Matter of Schulman, *710165 AD2d 499). If the conduct of these fiduciaries, whether de jure or de facto, is to be judged by the standards of a trustee, then the Statute of Limitations applicable to a trustee should also be applied to their acts in operating the corporation. Walter never disavowed that he was operating W.E.D. with the best interests of the estate in mind and he should now account for his actions in this regard. Of course, whether Walter can establish his contention that all of the transactions involving W.E.D. were fair and, even if he can establish this, whether it would prevent setting aside the transactions on the basis of his <mask> without full disclosure to other parties (Diamond v Oreamuno, 24 NY2d 494; Leibert v Clapp, 13 NY2d 313), are issues which must await Walter’s account and any objections that might be filed thereto.


Insofar as the alleged breach of fiduciary relationship is concerned, it is clear that there was none. Under the mortgage participation agreement between Plantsville and Camala, Plantsville had the right to extend, modify or satisfy the first mortgage, provided that it did not diminish the security of Camala. It was contemplated that the Lincoln first mortgage would be refinanced, and if there was no prohibition on Camala or its sister company taking over the first mortgage, *931there would be no prohibition against the president of those companies doing so individually. It is clear that far from operating through <mask>, defendant Stern, by taking over the first mortgage personally at a 13Vi% interest rate, which was well below the going commercial rate at the time, was getting no benefit for himself. Rather, he was preserving the situation and maintaining Camala’s equity position by investing over $1,200,000 of his own money. Even though there was no longer sufficient cash flow from South Pierre to cover payments for both Plantsville and Camala. Camala had a guarantee and continued to receive payments from Plants-ville. There is no basis for any claim of any breach of fiduciary obligation owing by Stern to Camala.


The executrix has the duty to explain her actions particularly to one interested in the estate. Her failure to answer will give rise to her dismissal as a breach of her fiduciary duties. (See SCPA 711, 719.) No matter how broadly drawn, a power of attorney does not allow for the attorney in fact to make a gift to herself of the principal’s property without creating a presumption of impropriety and <mask>. The situation by its very nature, invites inquiry.


Plaintiff commenced this action to recover the sum of $21,445 for title abstracting services allegedly rendered to defendant between August 10, 2006 and May 15, 2007. The complaint asserts causes of action for breach of contract and on an account stated. On May 14, 2008, plaintiff served a notice to produce and a notice to admit on defendant, and the same day also served a certificate of readiness for trial in which plaintiff stated, inter alia, “Discovery proceedings now known to be necessary completed”; “There are no outstanding requests for discovery”; “There has been a reasonable opportunity to complete the foregoing proceedings”; and, “The case is ready for trial.” Plaintiff filed the certificate of readiness for trial on May 21, 2008. Plaintiffs discovery demands included a request that defendant admit receipt of its price list and unpaid invoices and the veracity of same. Without moving to strike the certificate of readiness, defendant answered plaintiffs discovery demands. In its response to the notice to admit, defendant denied receipt of plaintiffs price list and the unpaid invoices, or, in the alternative, said that they had been received by defendant but purposefully concealed from defendant by a former officer and shareholder of defendant. Defendant further asserted that said individual had engaged in a pattern of <mask> and other behavior to purposefully harm defendant. Defendant did not admit the veracity of the invoices. Together with its answer to plaintiffs discovery demands, defendant served a number of discovery demands on plaintiff.


The total fee paid by conservator Gwendolyn Cole to herself for dog care exclusive of expenses paid to third *721parties for food, shots, spaying and other required expenses totals the sum of $779. A fee for dog care was never fixed by the court but set by the respondents themselves. It is well established that a fiduciary should not deal with himself. This prohibition against <mask> does not depend upon any question of fraud, but is an absolute rule made to avoid the possibility of fraud and self-interest. (Matter of Ryan, 291 NY 376.) The court shall therefore reduce the allowed fee for dog care to $450 and surcharge the respondent Gwendolyn Cole the sum of $329.


The harm alleged in the amended complaint is that Casciano and Fulham engaged in <mask> to the detriment of Bridge-point as to their dealings with 350 Elmwood, LLC, and that Casciano and Fulham otherwise diverted funds from Bridge-point to their individual benefit. These allegations make clear that the harm sought to be remedied is harm first and foremost to Bridgepoint and not the plaintiff. The operating agreement makes this clear in article V providing for pro rata contributions to all of the members’ capital accounts. As the remedy sought by plaintiff would inure to the benefit of the corporation before any benefit could be rendered to plaintiff and the other members, the court concludes that the second cause of action seeks derivative relief and is not a direct action (Longo v Butler Equities II, 278 AD2d 97, 98 [1st Dept 2000]).


*34Plaintiff, the Board of Managers of the White Sands Condominium (Board), brought this action to recover the principal sum of $12,870.95, which represented common charges assessed against defendants’ residential condominium unit in the White Sands Condominium (Condominium) for the period from September 2009 to July 2010. In their answer, defendants asserted numerous defenses, including challenges to the Board’s authority to assess and collect common charges, as well as breach of fiduciary duty and <mask>. Plaintiff, which had successfully sued defendants for unpaid common charges for the period ending June 5, 2009 in a prior action (Board of Mgrs. of White Sands Condominium v Cooper, 34 Misc 3d 152[A], 2012 NY Slip Op 50310[U] [2012] [decided herewith]) (Case Number 1), moved, pursuant to CPLR 3212, for summary judgment, on the ground that the City Court’s award of judgment in favor of plaintiff in the prior action established plaintiffs right to recover unpaid common charges from defendants, and that, as defendants could have litigated the same defenses asserted herein in the prior action, they were estopped from raising the issues underlying those defenses in this litigation. In their opposition, defendants asserted, among other things, that material issues of fact existed as to whether the Board had authority to act under the Condominium’s governing instruments, including its offering plan and bylaws, and whether the Board had acted in good faith. The City Court denied plaintiffs motion, concluding that the doctrine of res judicata was inapplicable to the defense challenging plaintiff’s authority, and that an award of summary judgment was precluded due to the existence of material issues of fact as to whether the Board’s actions, including the imposition of common charges as well as other acts, were authorized and were made in good faith and in compliance with the Condominium’s regulations.


“[t]he Metro and Verizon Leases were entered into either because of the collective fraud of defendants in ignoring and concealing the Leases from the Unit Owners or by the mistaken belief by defendants Metro and Verizon that the Board had the authority to enter into the Leases when it did not.” Individual board members have fiduciary duties owed to the condominium and its unit owners (see Board of Mgrs. of Fairways at N. Hills Condominium v Fairway at N. Hills, 193 *874AD2d 322 [2d Dept 1993] [fiduciary duty requires that the board of managers perform their duties in good faith and with the degree of care that an ordinary prudent person in a like position would use under similar circumstances; in accordance with New York law, board members are free from liability for honest but imperfect exercises of the board’s business judgment but could be held individually liable if plaintiff were able to prove <mask> and bad faith]). Nevertheless, courts will dismiss complaints that fail to allege with specificity independent tortious acts by the board members (see e.g. Felton v 77 Park Ave. Condominium, 38 AD3d 1 [1st Dept 2006]). Plaintiffs’ complaint is devoid of any specific allegations of fraud, self-dealing or other wrongdoing that would support a finding of individual liability against the Board and the Board members.19 Indeed, the only acts alleged are that the Board members incorrectly construed that they had authority to enter into the agreement. Such a claim cannot support a breach of fiduciary duty as a matter of law (see e.g. Carney v Donley, 261 111 App 3d 1002, 1011, 633 NE2d 1015, 1022 [2d Dist 1994] [“When a board properly exercises its business judgment in interpreting its own declaration, we will not find the board’s interpretation a breach of fiduciary duty”]). Nor does the complaint allege any theory for individual liability against the Board members based on a piercing of the corporate veil. Accordingly, the Board defendants’ motion to dismiss the first and sixth causes of action shall be granted.


On April 29, 1996 the individual respondents filed a petition with the Board of Regents seeking removal of the petitioners as officers and/or members of the Board of Trustees of Adelphi University. An amended petition was filed with the Board of Regents on July 7, 1996. The amended petition contains five general categories of allegations: that the trustees have granted the President of Adelphi University an excessive compensation and benefit package, including lavish perquisites, despite what respondents contend is a poor performance record; that the Board of Trustees has taken action on matters notwithstanding the existence of conflicts of interest, resulting in several instances of <mask>; that the trustees failed to investigate an employee’s theft and misuse of University funds and failed to take remedial action; that the trustees have failed to properly oversee the University with respect to issues regarding members of the administration and faculty, including violations of the University’s Articles of Governance; that there have been acts of misconduct and negligence by the Board of Trustees "with respect to the revelation of the foregoing facts to the public”.


The Condominium and Cooperative Conversion Protection and Abuse Relief Act of 1980 was enacted to remedy certain abuses in conversions of rental housing into cooperative and condominium forms of ownership. Congress found that in cooperative and condominium conversions "certain long-term leasing arrangements for recreation and other condominium- or cooperative-related facilities which have been used in the formation of cooperative and condominium projects may be unconscionable” (15 USC § 3601 [a] [3]). Congressional intent under section 3607 of the Act was to protect newly formed cooperatives and condominiums from <mask> or "sweetheart” contracts entered into when the landlord or sponsor is still in control of the property. Section 3607 provides that self-*1068dealing contracts may be terminated by tenant-shareholders when they gain control of a cooperative or condominium development. (Park S. Tenants Corp. v 200 Cent. Park S. Assocs., 748 F Supp 208 [SD NY 1990]; West 14th St. Commercial Corp. v 5 W. 14th St. Owners Corp., 625 F Supp 934 [SD NY 1986].)


The basis of petitioner’s position is that the intermediate accounts rendered by the executors and trustees failed to set forth all of the assets of the estate for which they were accountable ; that the statements in said accounts that they contained a statement of all facts affecting the rights of the executors and trustees and the interested parties were deliberately false and untrue in that they failed to disclose that stock of a corporation owned by testator was purchased by one of the executors and trustees and by a corporation controlled by him; that such acts constituted <mask>; that said accounts failed to make a full and complete disclosure of such transactions and that the decrees settling such accounts were obtained by actual and intentional fraud. The petition further alleges that the waivers, *69general releases and ratification of the statement of account at the time of distribution to the remaindermen after the termination of the trust were secured through actual and intentional fraud.


Plaintiff’s appeal to WHCS Real Estate Ltd. Partnership v 33 Greenwich Owners Corp. (168 Misc 2d 721) is also inapposite. That case deals with the Condominium and Cooperative *86Conversion Protection and Abuse Relief Act of 1980 (15 USC § 3601 et seq.), which permits the shareholders to terminate certain long term <mask> leases of condominium and cooperative facilities. The Act is limited to "[a]ny contract * * * which” "provides for operation, maintenance, or management of a condominium or cooperative association in a conversion project, or of property serving the condominium or cooperative unit owners in such project” (15 USC § 3607 [a] [1]). The Act has no application to holders of unsold shares of residential apartment units.


Matter of Peck (152 Misc. 315), cited by the objectants, presented for determination an example of <mask> by a fiduciary in which the executors sought to establish ratification of the challenged acts of investment by the respondents upon the basis of their execution of an instrument of release to the *850executors in which a formal accounting- was waived. No evidence having been presented indicating that the facts regarding the purchase of the mortgages had been brought to the attention of the parties at the time of the execution of the release, the contention of the executors was overruled. The principles enunciated in Adair et al. v. Brimmer et al. (74 N. Y. 539, 554), that to establish a ratification by a cestui que trust, full knowledge of the material facts, and in an instance of self-dealing by a fiduciary, full knowledge of the legal rights possessed by the cestui gue trust, must be clearly shown, are still unquestionably the law, for the rule there formulated was indirectly approved in City Bank Farmers Trust Co. v. Cannon (supra), and again in Matter of Ryan (supra). Distinction must be drawn, however, between estoppel predicated upon ratification whether through the medium of receipt, release, informal accounting, or knowledge otherwise acquired, and estoppel arising by decree judicially settling an account. If parties who are duly cited upon an accounting do not avail themselves of the rights accorded to them by statute, do not inquire or question acts of the fiduciary which are sufficiently disclosed to them by the account to put them on notice or inquiry, and yet at a later date nlay assert objections to such previously disclosed acts' and proceedings, the benefits of judicial settlement are obliterated. Upon the entry of a decree judicially settling an account, rights of both the fiduciary and the parties in interest .vest. Such vesting of rights should not be lightly disturbed except in a proper ease under subdivision 6 of section 20 of the Surrogate’s Court Act.


*583In respect of the individual trustees the court finds no such malfeasance or misfeasance as warrants surcharge of either. They had confidence in the corporate trustee. They could have had no more access to the records of the interrelated companies than the general public. They are not shown to have known of the <mask> of the corporate trustee. The difficulties confronting realty managers generally during this accounting period were experienced by these trustees. No deliberate fault of the individual trustees is shown nor any personal gain by them.- No surcharge will be imposed on them. In denying the- request of objectants that the individual trustees be surcharged the court has not passed upon their right to receive commissions nor passed upon the question whether their derelictions or inactivities as trustees warrant denial of commissions to them in whole or in part. All of those questions have been reserved for further hearing when the decree is noticed for settlement.


Much reliance is placed by objectants on Matter of Ryan (supra); Matter of Long Is. Loan & Trust Co. (Garretson) (supra), and Matter of Curtiss (261 App. Div. 964). We make no endeavor to distinguish in detail these decisions from the instant case other than to note that they appear to turn largely on questions of <mask>, misrepresentation, obvious inadequacy of information supplied in the account or with special circumstances not herewith presented.


From the viewpoint of trust administration that' idea finds justification in the fact that the existence of a common trust *463fund furnishes a ready means of investing small amounts of money with the same assurance- of safety as can be had from that diversification of risk which a large investment can secure for the investor. To secure that safety for persons interested in estates the Legislature validated the idea of a common trust fund for trust investments. The legislation dealt with the subject of commingling and <mask> in relation to such a fund and assured the corporate fiduciary managing such a fund against criticism based solely on the act of investing in such fund moneys held by the fiduciary as such. The Legislature made sure by its provisions that the fund would not be used by the fiduciary for its own corporate investments and that there would be no opportunity to load the fund with securities promoted by the operating bank. It gave to the Banking Board large discretion in the matter of rules and supervision so as to assure the propriety of the administration of such a fund.


1. Every partner must account to the partnership for any benefit, and hold as trustee for it any profits derived by him without the consent of the other partners from any transaction connected with the formation, conduct, or liquidation of the partnership or from any use by him of its property. He notes that the jury found that Campbell breached his fiduciary duty to Finch. Finch says Campbell commingled funds and engaged in <mask> by locking Finch out and using Finch & Campbell funds to operate his new law firm. He says in his brief: "What Campbell purchased with the commingled funds was his ability to practice law and fund his lifestyle without paying his [Bruce Campbell Law Firm] staff and other expenses out of his own pocket or out of [Bruce Campbell Law Firm's] revenues."


In Purchase v. Atlantic Safe Deposit & Trust Co. (81 N. J. Eq. 344, affd. 83 N. J. Eq. 353) the corporate trustee paid to one of its directors compensation for disclosing (italics supplied) a purchaser of a parcel of trust realty in the belief that the purchaser was a stranger when it was the director himself. The court stated that it was the duty of the board of directors to find a purchaser, and that a member who performed that service did no more than his plain duty, and held that the corporate trustee and director were liable for the refund of the director’s compensation and the director to account and pay for all profits received in connection with the purchase. It does not appear from the opinion whether the director was a licensed real estate broker who, if the services had been legitimately performed, would have been entitled to a commission. It is stated, however, that the compensation was paid for “ disclosing a purchaser ” — the implication therefrom being that the director was not a broker and merely suggested the name of a possible purchaser and did not participate in the negotiations resulting in the sale. In that case the entire transaction was permeated with fraud both upon the corporate trustee and the trust beneficiary and a flagrant violation of the director’s obligation of undivided loyalty to his fiduciaries. Even had no compensation been paid to the director in that case and the purchase made innocently by him, he would have been accountable for the profits under our law (Matter of Kilmer, 187 Misc. 121 and cases cited). That case differs, however, from the case at bar in that here the broker has in good faith and with undivided loyalty furthered the interests of the beneficiaries by the sale of the property to a stranger, and the compensation received by his corporation was for services rendered as a real estate broker, and not for profits or possible profits arising out of the purchase of the trust property by him or by persons related to or associated with him in any relationship, or involving the element of <mask>.


This alternative account of the purpose of the Clause does not, howev- er, favor the “snapshot” interpretation, and thus it does not cast doubt on the constitutional effectiveness of rollback legislation. Even if one under- stands a concern about undue executive pressure on the legislature to have influenced the delegates to the Constitutional Convention in negotiating the Clause, the “on net” construction of “shall have been encreased” is still the superior reading. Although there is some support in the history of the Constitutional Convention for the view that the drafters of the Ineligi- bility Clause had a concern about improper executive influence through the appointment power, the text of the Clause shows that this concern was not its overriding and unqualified purpose. By its terms, the Clause does not prohibit the President from appointing a sitting member of Congress to an Executive Branch office. The delegates rejected the Virginia Plan, which would have done so. In that regard, the Clause could not have been designed to root out any possible Executive Branch use of the appoint- ment power to influence members of Congress. Indeed, in forging his compromise, Madison was clear in not seeking to impose such a draconi- an rule. See Van Alstyne Statement at 53 (“[N]ot to recognize the efficacy of [rollback legislation] . . . would itself offend one of the reasons that accounted for the final form of [the Ineligibility Clause]: to assure the eligibility of Members of Congress for appointment to vacancies in exist- ing offices, insofar as neither the office itself nor any prerequisite associ- ated with that office would result to them as a consequence of any act of Congress during [their] term.”). The issue, then, is whether the “snapshot” interpretation of “shall have been encreased” would appreciably guard against the corrupting influence of executive appointments, even though the Clause poses no general bar to the Executive offering them as inducements. We do not see how it would. A construction of the Clause that would permit rollback legislation would seem well-designed to check the Executive from unduly influenc- ing congressional members with the prospect of attractive appointments, given that appointments in general are not prohibited. Any tangential effect that the increase in the pay of an office might otherwise have on the President’s ability to influence Congress by promising appointment to such office would be negated by the expectation of the enactment of rollback legislation. Thus, as with the desire to avoid <mask> by the legislature, conceding the efficacy of rollback legislation would comport with this purpose of the Ineligibility Clause. See Dixon Statement at 71


It is well settled that joint adventurers owe a high degree of fidelity to each other. (Meinhard v. Salmon, 249 N. Y. 458, 463-464.) The courts have universally agreed that a joint adventurer or partner is prohibited from <mask> during the pendency of the venture and that profits so realized belong to the venture (e.g., Meinhard v. Salmon, supra; Selwyn & Co. v. Waller, 212 N. Y. 507; Stem v. Warren, 96 Misc. 362, mod. 185 App. Div. 823, mod. 227 N. Y. 538; 48 C. J. S., Joint Adventures, § 7, subd. a, § 11, subd. b, pp. 831, 840). If the activities of the errant partner are in any wise traceable to the business or assets of the venture they will be treated as part of the venture. (Cf. Partnership Law, § 12, subd 2, § 43.) This standard of rigid fair-dealing is especially high when the self-dealing party is manager of the enterprise. In Meinhard v. Salmon (supra) the court said that one of the joint venturers “ had put himself in a position in which thought of self was to be renounced, however hard the abnegation. He was much more than a coadventurer. He was a managing coadventurer (Clegg v. Edmondson, 8 D. M. & G. 787, 807). For him and for those like him, the rule of undivided loyalty is relentless and supreme (Wendt v. Fischer, [243 N. Y. 439]; Munson v. Syracuse, etc., R. R. Co., 103 N. Y. 58, 74).” (Meinhard v. Salmon, supra, p. 468.) (See Boxill v. Boxill, 201 Misc. 386, 389.)


Dan Lamont, S. In this compulsory accounting proceeding wherein the ac*750counting executrix and her husband are cotrustees of three testamentary trusts under decedent’s will, this court holds and determines that process must issue to all persons interested in such trusts. The exception provision of SCPA 2210 (10) relating to cofiduciaries should not apply to the cotrustee husband of the accounting executrix where the executrix is accused by the objectants of <mask> and mismanagement, where the executrix makes a six figure claim against the estate, and when bank accounts allegedly standing in decedent’s name are not accounted for and are claimed by the executrix as her separate property.


Respondent asserts collaterally that even if the fiduciary exception were to apply, petitioner has not shown “good cause” to require production of documents that are governed by the attorney-client privilege. In New York, the application of the *114fiduciary exception is governed by Hoopes v Carota (142 AD2d 906 [3d Dept 1988]), where the Appellate Division, Third Department, found that beneficiaries of a trust established good cause to compel disclosure of otherwise privileged attorney-client communications in a suit against the trustee for alleged <mask> and other misconduct. In Hoopes, the beneficiaries of a trust commenced an action to remove the named trustee amid allegations that the trustee proposed and obtained board approval for salary increases for himself and another person, obtained approval for long-term employment contracts for various corporate officers and discouraged merger negotiations that were alleged to have been favorable for stockholders but less favorable to management. The Court determined that the salient factor in that case was that defendant acted both in his capacity as a trustee and as a corporate officer and director and was therefore the fiduciary of the plaintiff beneficiaries.


A trustee ordinarily owes a duty to the cestui not to buy at a sale of trust property (3 Bogert on Trusts & Trustees, § 543; Matter of Hubbell, 302 N. Y. 246, 255; Fulton v. Whitney, 66 N. Y. 548, 555). There is present in this matter an element of <mask> by one of the executors, a course of conduct which has long been interdicted (Matter of Shehan, 285 App. Div. 785, 791 and cases cited; cf. Skinnell v. Mahoney, 197 App. Div. *97808). That phase of the motion for the examination with respect to the enumerated items is accordingly also granted. Likewise granted is the demand for the production of the records and books of Max Tannenbaum, Inc., S. Tannenbaum ■Company and S. Tannenbaum Co., Inc. The latter corporation is not a party to this proceeding but inasmuch as it appears that the records are subject to the control or are in the custody of the widow-executrix, their production is proper (Matter of Shehan, supra; see, also, Southbridge Finishing Co. v. Golding, 2 A D 2d 430). The special guardian’s motion to participate in said examination is also granted. Settle order on notice.


In their petition, Plaintiffs averred that Thompson Coburn guided its client, Allegiant Bank, in concealing the improper conduct committed as part of the BLP scheme. Specifically, Plaintiffs claimed that Thompson Coburn and Allegiant Bank discovered in late 2001 that Sigillito and Brown retained unauthorized placement fees when transferring the clients' assets to overseas borrowers and made transactions prohibited by the Internal Revenue Service. Plaintiffs contend that, instead of informing Allegiant Bank's clients of the unauthorized transactions or reporting the prohibited <mask> to the Internal Revenue Service, Thompson Coburn aided Allegiant Bank in transferring its custody of the self-directed IRAs to a successor custodian *913in a manner that permitted the BLP's continuation. Plaintiffs maintain that, because of the advice and counsel given by Thompson Coburn, Allegiant Bank secured customer approval for transfer of the IRA accounts to the successor custodian without raising questions about Allegiant Bank's resignation.


A recent Court of Appeal decision illustrates these principles. ( Greco v . Greco (2016) 2 Cal.App.5th 810, 206 Cal.Rptr.3d 501 ( Greco ).) In Greco , a beneficiary of her deceased parents' trust and estates sued her brother in civil court for elder abuse, and in probate court for breaches of fiduciary duty. ( Id . at pp. 816-817, 206 Cal.Rptr.3d 501.) In both actions, the sister alleged the brother (as the trustee of the trust and executor of the estates) filed litigation against her in bad faith and for improper reasons, and wrongfully used trust and estate funds for these purposes. ( Ibid . ) Similar to here, she alleged the brother breached the " 'duty to act with utmost good faith ..., the duty of loyalty ..., the duty to treat all beneficiaries equally ..., the duty to act according to the Trust and Estates documents, the duty to avoid <mask> ..., and the duty to avoid conflicts of interest.' " ( Ibid . ) In the breach of fiduciary duty claim, the sister alleged her brother " 'engaged in a course of conduct ... fomenting litigation and other wrongful acts, against ... beneficiaries of the Trust and/or estate, in an attempt to disinherit them ... and/or prevent questioning of his actions.' " ( Id . at p. 817, 206 Cal.Rptr.3d 501.) The brother responded by filing anti-SLAPP motions, contending the sister's claims "arose from actions and communications in the underlying litigation and therefore were protected activity." ( Id. at p. 818, 206 Cal.Rptr.3d 501.) The sister countered that "the gravamen of the [claims] was that by taking money to pursue his personal vendetta, [the brother] wrongfully took money in breach of his fiduciary duties." ( Ibid . ) Supporting declarations showed the brother withdrew substantial funds from the trust and estates to fund the underlying litigation. ( Ibid . )


Here, petitioners reason that it would be an “unreasonable or absurd application of the law” to interpret Insurance Law § 1411 (d) to permit stock repurchases that are not restricted by Insurance Law § 4105 (a)’s earned surplus test, and urge this court, as did the Santi Court, to look to the legislative intent when applying Insurance Law § 1411 (d). (Petitioners’ reply brief at 120.) The difference, however, between the instant case and the facts presented in Santi is that in the latter, the Court of Appeals concluded that Corines’ argument was based on a “fair and literal reading of the text,” while here there is nothing in the text of Insurance Law § 1411 (d) to support the argument that stock redemptions are subject to the provisions of Insurance Law § 4105 (a). Even if this court were to look to the *209legislative intent which petitioners cite, i.e., that the legislature wanted the Superintendent to have to approve stock redemptions to prevent possible <mask> by management and insiders (see petitioners’ reply brief at 120), this intention is not at odds with the plain language of Insurance Law § 1411 (d), which clearly states that “a plan of stock redemption and retirement [must be] approved by the superintendent as reasonable and equitable.” If the legislature wanted to incorporate any portions of Insurance Law § 4105 (a) into section 1411 (d), it certainly could have done so, but instead chose not to. Therefore, this court will not impose the standards set out in Insurance Law § 4105 (a) on Insurance Law § 1411 (d).


The court concludes that there is ample evidence in the record to establish the finding that the liquidation of the corporation along with the estate’s interest therein as carried out by the executors involved a conflict of interests, <mask> and dereliction of duty on their part with respect to an asset to which the widow personally and alone benefited to the detriment of the estate. Consequently, the executors must be held chargeable with the amount of loss sustained by the estate in their failure to account for the good-will value of testator’s shares of stock and for the profits reaped by the widow as a result thereof (Matter of Ryan, 291 N. Y. 376; Matter of Brown, 242 N. Y. 1, supra; Matter of Silkman, 121 App. Div. 202, affd. 190 N. Y. 560, supra; Matter of Vivanti, 138 App. Div. 281, appeal dismissed 200 N. Y. 513; Matter of Borden, 95 Misc. 443; Matter of Shehan, 285 App. Div. 785; Matter of Spingarn, 5 Misc 2d 36, supra; Matter of Bradley, 143 N. Y. S. 2d 264; cf. Matter of Arnay, 18 Misc 2d 266; Matter of Halle, 103 Misc. 661; Matter of Bolton, 121 Misc. 51; Matter of Gorsline, 225 App. Div. 720; *751Thursby v. Kirby, 171 Misc. 310; Matter of Dupignac, 123 Misc. 21, affd. 211 App. Div. 862; Matter of Welch, 77 Misc. 427).


The objeetants seek to surcharge the corporate cotrustee alone with the sum of approximately $360,600 and interest, for alleged negligence and even gross negligence in investing the funds of the trusts in participations of a certain mortgage and for failure to give notice to the life beneficiaries required by former section 188, subdivision 7, of the Banking Law. It was further contended that the real estate upon which the total mortgage of $2,800,000 was placed was not worth fifty per cent more than the amount of the loan, that the loan was imprudent and improvident and that it was negligently made, because there was no proper investigation or reliable appraisal of the real estate, and that the income of the *600property was insufficient to meet the carrying charges, including taxes and interest upon the loan. Other grounds of négligence, <mask> and lack of prudence in connection with the loan were asserted by the objectants. The cotrustee on the other hand contends that its officers and representatives acted in good faith and with the current exercise of prudence, vigilance and honest judgment.


Appellees are the owners/lessors and lessees of mineral interests in Sections 25 and 36, Township 9 North, Range 11 West, Cleburne County, Arkansas. The mineral interests at issue, which lie in the Moorefield Shale Formation (below the Fayetteville *250Shale Formation), are integrated into SWN's drilling units by virtue of integration orders issued by the AOGC in March 2017. SWN subsequently filed supplemental applications with the AOGC seeking a determination of "the reasonable royalty rate consistent with royalty negotiated for depth-limited leases below the base of the Fayetteville Shale formation, made at arm's length in the [same] general area." In essence, SWN argued that the oil and gas leases between the mineral owners and Hurd Enterprises and Killam Oil were "<mask>, non-arm's length" transactions and that the 25 percent royalty rate was "grossly excessive." Appellees objected to the supplemental application and contended, among other things, that the AOGC did not have the authority to disregard the royalty rate in an existing lease when the lessee elects to go non-consent. After a public hearing, the AOGC ordered that "[t]he leasehold royalty payable to the parties ... by the Consenting Parties during the recoupment period shall not exceed 1/7th." Thus, the AOGC reduced the royalty rate agreed to by Hurd Enterprises and Killam Oil and the mineral owners.


We do not suggest a cause of action for participation in breach of trust must always be viewed as giving rise to a civil conspiracy. Certainly, we can conceive of circumstances where an attorney could be liable for participation in breach of trust, but where the attorney could not be viewed as a coconspirator of the trustee. For example, if a trustee were to fail to keep the beneficiary informed regarding the trust's administration, and if, unbeknownst to the trustee, the trustee's attorney were to engage in <mask> by transferring trust property to him or herself, then the beneficiary could state a cause of action against the attorney for participation in breach of trust, but there would be no basis for concluding there was an agreement or plan between the attorney and the trustee to engage in the conduct amounting to a breach of trust.


Respondent’s status as conservator of decedent’s property does not place her in any better position with regard to the retirement benefits than her possible status as decedent’s attorney-in-fact. Respondent had a duty in her capacity as decedent’s conservator to prevent her own interests from conflicting with the interests of decedent (see, Matter of Rothko, 43 NY2d 305; Meinhard v Salmon, 249 NY 458; *875Munson v Syracuse, Geneva & Corning R. R. Co., 103 NY 58). Such a conflict clearly arose when respondent selected an option for decedent’s retirement benefits which reduced decedent’s benefits so that benefits might be continued to be paid to respondent after decedent’s death. If a fiduciary believes <mask> should be permitted because of "extraordinary circumstances”, an exception to the rule that business decisions are within the discretion of the fiduciary rather than the court is applicable and authorization for the self-dealing transaction can be obtained from the court if it is established that the transaction is in the best interests of the parties to whom the fiduciary obligation is owed (Matter of Tennenbaum, 20 AD2d 808, affd 15 NY2d 829). Thus, if respondent believed that the option selected by her was in the decedent’s best interest and in accord with what decedent would have selected had she been competent to make such a selection, she should have sought court approval. To presume or speculate that such an application would have been granted would be tantamount to condoning respondent’s failure to seek prior court approval of this self-dealing transaction and would be detrimental to encouraging compliance with the high standards required of a fiduciary.


Another section of the newly enacted tax law states that the governing instrument must bar the trustees from engaging in certain prohibitive acts, i.e., (1) engaging in <mask> as defined in subdivision (d) of section 4941 of the Internal Revenue Code of 1954; (2) retaining any excessive business holdings as defined in subdivision (c) of section 4943 of said code; (3) investing in such manner as to incur tax liability under section 4944 of said code; (4) making any taxable expenditures as defined in subdivision (d) of section 4945 of said code; and (5) requiring the trustees to distribute trust income for each taxable year at such time and in such manner as not to become subject to the tax on undistributed income imposed by section 4942 of said code. Unless the governing instrument contains such restrictions, bequests to such a trust will not qualify for estate tax deductions and the income of the trust will not be exempt from income taxes.


Regarding the Waystation's arguments about her failure to notify the Attorney General, Summers contended she did not have to allege such notification or notify the Attorney General before filing the complaint. She also submitted evidence she notified the Attorney General of the action in writing shortly after filing the complaint. Summers conceded her cause of action for <mask> required her to join the Attorney General as an indispensable party, and she requested leave to amend to do so.4 She also requested that, in the event the trial court sustained the demurrer for failure to notify or join the Attorney General, the court grant her leave to amend to cure those defects.


This court recognizes that the resale of this automobile for only 57% of the original purchase price only seven months after the original purchase does not by itself create triable issues of fact. (Bankers Trust Co. v Dowler & Co., 47 NY2d 128; Marine Midland Bank v St. Louis, 75 AD2d 972.) The court also recognizes that naked assertions of impropriety in the sale cannot overcome the presumption of commercial reasonableness. (First Nat. City Bank v Cooper, 50 AD2d 518.) But where, as here, the defendants show that a great discrepancy between the purchase price and the resale price exists, that they did not receive notice of the public sale within the requisite time period, and that a private sale was later conducted without notice to them, the burden then falls- upon the plaintiff to show at trial that notice was adequate and that the sale was commer*455cially reasonable, without any <mask>. (Security Trust Co. of Rochester v Thomas, 59 AD2d 242.)


During the years in question defendant entered into numerous agreements to sell “seconds” to Dasid and Durvin "at prices below their actual market value and below prices *471charged to other accounts. These jobbers would then resell the goods to a third entity at a higher price. Lowenstein is conservatively estimated to have sustained an economic loss of approximately $433,000 as the result of defendant’s <mask> in its goods, with defendant having received substantial amounts of money in the form of kickbacks. Thus, for example, the Lowenstein invoices would be marked “bill and hold” and, once the jobber paid Lowenstein, the goods would be released to the third entity, the ultimate purchaser. A portion of the profit received by the jobbers from the sale to the ultimate purchaser would then be remitted to defendant.


Subsequently, on November 28, 2005, Dolores Fogarty, Esq. was appointed guardian of the property of Jane S. Ms. S. delivered to her a check in the amount of $60,000 “as repayment of loans made to Mel S. out of Jane S.’ account.” The findings further state, “The payment of said $60,000 by Mel S. shall not be deemed a release of any claims that might exist on behalf of Jane S. against her daughter . . . nor shall it be conclusive that such payment is the correct amount for the repayment of *1039any such loans.” (Findings at 7-8.) Thus the pending trial on the objections to the account of Ms. S. as guardian of her mother involves the question of whether the correct amount of money has been repaid by the guardian for her <mask> and whether the guardian should be surcharged.


Although not specifically so stated in any of the petition or answers thereto, it appears that the facts, as can be culled from all of the other papers and proceedings had herein, support a claim for the imposition of a constructive trust (see e.g. Matter of Sakow, 219 AD2d 479 [1995]). That is, if claimant can show respondent used a confidential relationship with his stepmother to deprive her of her property and engaged in <mask> to enrich himself (id. at 482), a cause of action may exist. Further, the wherefore clause in the petition can be so construed so as to support a claim for imposition of a constructive trust. Under the liberal construction theory, a pleading must stand if factual allegations manifest any cause of action cognizable at law, and the pleader is afforded the benefit of any favorable inferences (Salvatore v Kumar, 45 AD3d 560 [2d Dept 2007]).


The standard of review applied to the actions of a residential cooperative corporation, the common-law business judgment *29rule, requires courts to “defer to good faith decisions made by-boards of directors in business settings” (40 W. 67th St. v Pullman, 100 NY2d 147, 153 [2003]). The rule applies “[s]o long as the board acts for the purposes of the cooperative, within the scope of its authority and in good faith” (Matter of Levandusky v One Fifth Ave. Apt. Corp., 75 NY2d 530, 538 [1990]), that is, consistent with the powers authorized by the bylaws and proprietary leases, where there is “a legitimate relationship between the Board’s action and the welfare of the cooperative” (Pullman, 100 NY2d at 156), and where there is no evidence of “bad faith, arbitrariness, favoritism, discrimination or malice on the cooperative’s part” (id. at 157). Accordingly, it must first be determined whether the cooperative’s action “was authorized, made in good faith, and in furtherance of the [cooperative’s] legitimate interests,” and then whether the tenants “raise [d] a triable issue of fact with respect to fraud, <mask>, or other misconduct by the [cooperative] which would trigger further judicial inquiry” (Walden Woods Homeowners’ Assn. v Friedman, 36 AD3d 691, 692 [2007]; see also Oakwood On The Sound, Inc. v David, 63 AD3d 893, 894 [2009]; Levine v Greene, 57 AD3d 627, 628 [2008]; Martino v Board of Mgrs. of Heron Pointe on Beach Condominium, 6 AD3d 505, 506 [2004]; Gillman v Pebble Cove Home Owners Assn., 154 AD2d 508, 508-509 [1989]). “ ‘[C]onclusory and speculative allegations of bad faith, self-dealing, and other wrongdoing’ ” will not suffice to raise a triable issue of fact (Molander v Pepperidge Lake Homeowners Assn., 82 AD3d 1180, 1183 [2011], quoting Bay Crest Assn., Inc. v Paar, 72 AD3d 713, 714 [2010]).


"What the defendants argument comes down to is first that the plaintiff’s guardian must have known of the transaction here complained of and failed to object. This is a question of fact and under a proper pleading defendants may raise it. Secondly, their argument is that an accounting trustee need not raise all possible questions himself and as to those not raised which,are discoverable, he is protected. To a certain degree this is true (Matter of Weir, 182 Misc. 845). But it does not generally extend to situations where the trustee is charged with dealing with himself (Matter of Ryan, 291 N. Y. 376). The claim here, while not strictly <mask>, is closely allied to it.


*666In each case the trustee gave prompt notice to the income beneficiary and properly earmarked the interest of this estate in the combined investment. The court finds that the trustee was not engaged in making an investment for its own account but was attempting to make an investment for the benefit of a number of estates and funds under its supervision. The court holds that the trustee was not guilty of <mask>, and that the investments were not on that ground improper.


One court, in analyzing the assessment made for maintenance and repairs stated that “[a]bsent a demonstration of the board’s lack of good faith, <mask>, dishonesty or incompetency, its determination * * * should not be judicially reviewed.” (Papalexiou v Tower West Condomium, 167 NJ Super 516, 528.) This is a recitation of the well-known “business judgment” rule under which a court will not and should not tell the board of directors how to run the co-op. (423-443 Tenants Corp. v Kretchmer, NYLJ, Nov. 26, 1980, p 6, col 4.)


It might be noted at this point that there is absolutely no claim whatsoever that Angelo J. Martone or Michael R. Martone were guilty of any <mask>, fraud, collusion or attempts to influence any county officials. It is conceded by all that both father and son are persons of high integrity and, also, that Michael R. Martone did not participate in the preparation of bids and did not influence any person with respect thereto. It is conceded that Mr. Martone’s legal activities were confined to condemnation matters and tax certiorari matters, and that he did not have the ‘ ‘ slightest connection ’ ’ with the construction of the new jail or the legal incidents connected with that construction.


Finally, upon this phase of the proceeding the Surrogate finds that the officers of the executor acted in the best of faith and with the highest sense of fidelity to the beneficiaries. They proceeded in the exercise of judgment, prudence and vigilance. (Matter of Clark, 257 N. Y. 132, supra.) Not the slightest evidence of <mask>, negligence, imprudence, improvidence or other ground of surcharge has been shown. All these objections are overruled in their entirety.


Plaintiff urges that if, as a stockholder, his complaint fails, the court should view it as one brought by a director against defendant directors requiring them to account for their improper acts of <mask> and waste (General Corporation Law, § 61). He urges that the right which he seeks to vindicate is not a personal one, but the corporate right to the faithful service of its directors. The fact that he no longer is a director is of no moment (Tenney v. Rosenthal, supra). Nor is it necessary that a prior demand be made on the corporation to sue to set aside an alleged improper transfer (Katz v. Braz, 188 Misc. 581, affd. 271 App. Div. 970).


We conclude from the above that the member states did not intend for the Compact to be a binding reciprocal agreement. The unmistakability doctrine, the lack of express restrictions in the Compact on the member states' power to delete or amend Articles III.1 and IV, the preexisting provisions in many member states' constitutions prohibiting contractual suspension of the tax power, the members' historical intent to preserve their sovereign tax powers, and the Compact's other provisions, such as the <mask>, persuade us that the member states did not intend for Articles III.1 and IV to be immutable, binding contractual terms. We therefore conclude that the Legislature acted within its plenary power in enacting Tax Code section 171.106 as the exclusive method for apportioning the Texas franchise tax and that the provision does not violate the *107Contract Clause or otherwise undermine the Compact's purpose or efficacy.


Shortly after passing this general severability statute in 1945 PA 119, the Legislature repealed severability clauses in specific statutes dating back to 1897. See 1945 PA 267, § 4 (“The legislature having incorporated into the statute on construction a uniform <mask> applicable to all public acts and declaring such acts to be severable, the provisions of Act No. 119 of the Public Acts of 1945 [i.e., the uniform severability act] are declared applicable to the following acts and the sections of such acts hereafter indicated are declared to be obsolete and are hereby repealed[.]”). These repeals demonstrate the universal application of MCL 8.5 across all statutes.