under the stipulation—an agreement reached by the parties in court to
resolve a pending motion in the prior action (see NYSCEF No. 25 at 3-5
[reproducing stipulation])—is not equivalent to an effort by defendant to enforce
his rights under "the lease or rental agreement" or applicable New York statutes for
purposes of § 223-b (1) (b).[FN4]
Nor does defendant explain how a contempt motion based upon the 2013 stipulation
could constitute protected activity under § 223-b.
H. Whether Plaintiff May Sell the Estate's Co-Op Shares Upon Terminating the
Lease
Defendant claims that even assuming plaintiff properly terminated the lease, plaintiff
has not established its entitlement to sell the Estate's co-op shares as a matter of law.
(NYSCEF No. 76 at 21.) In particular, defendant asserts that before selling the shares,
plaintiff must establish [*6]that it has a security interest in
the shares and has otherwise complied with the security-interest-enforcement procedures
of article nine of the Uniform Commercial Code (as enacted in New York). (See
NYSCEF No. 76 at 21-23.) This assertion is groundless. UCC article nine provides
for and governs the sale of collateral, such as co-op shares upon enforcement of a
security interest in that collateral by a party such as a co-op. But does not mean that UCC
article nine is the only basis on which a sale of co-op shares may occur. Here, the
proprietary lease expressly provides that after termination of the lease, the lessee
(i.e., defendant) must surrender the shares and plaintiff may then sell the shares.
(NYSCEF No. 21 at 28 [lease].) That contractual right exists, and may be exercised,
without regard to UCC article nine.
II. Whether Plaintiff is Entitled to Dismissal of Defendant's Affirmative
Defenses