Summary
In Jedrzejcyk v. Gomez, 985 N.Y.S.2d 18 (2014), meanwhile, there was no indication that board approval was required as the shares were created by virtue of the relevant transaction itself.
Summary of this case from Koh v. KooOpinion
2014-04-29
Francisco JEDRZEJCYK, Petitioner–Appellant, v. Nestor GOMEZ, et al., Respondents–Respondents.
Ginsburg & Misk, Queens Village (Hal R. Ginsburg of counsel), for appellant. Miriam Janicki–Crespo, Jackson Heights, for respondents.
Ginsburg & Misk, Queens Village (Hal R. Ginsburg of counsel), for appellant. Miriam Janicki–Crespo, Jackson Heights, for respondents.
GONZALEZ, P.J., SWEENY, MOSKOWITZ, RICHTER, CLARK, JJ.
Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about October 3, 2012, which denied the petition for judicial dissolution of a corporation, and granted respondents' cross petition to dismiss the petition for lack of standing, unanimously reversed, on the law, without costs, and the matter remanded for a hearing on the issue of standing.
Although no shares in respondent Wales Development, Inc. were ever issued, petitioner established prima facie that he was the owner of a 50% interest in Wales—and therefore had standing to petition for the corporation's dissolution ( seeBusiness Corporation Law § 1104[a] )—by submitting evidence of an agreement between himself and respondent Gomez that he owned 50% of the corporation ( see United States Radiator Corp. v. State of New York, 208 N.Y. 144, 149–150, 101 N.E. 783 [1913];Matter of Bhanji v. Baluch, 99 A.D.3d 587, 952 N.Y.S.2d 545 [1st Dept.2012];Matter of M. Kraus, Inc., 229 A.D.2d 347, 645 N.Y.S.2d 304 [1st Dept.1996],lv. dismissed89 N.Y.2d 916, 653 N.Y.S.2d 919, 676 N.E.2d 501 [1996];LaConti v. Urban, 309 A.D.2d 735, 765 N.Y.S.2d 634 [2d Dept.2003]; but see Concrete Constr. Sys. v. Jensen, 65 A.D.2d 918, 919, 410 N.Y.S.2d 460 [4th Dept.1978] ). The evidence included proof that petitioner contributed $1.4 million to the corporation and an affidavit by his accountant stating that petitioner and Gomez had expressed an intent that each own 50% of the corporation, that petitioner had contributed monies to the corporation's bank account, that she had performed accounting services for the corporation pursuant to both petitioner's and Gomez's directions, and that petitioner and Gomez had held themselves out as partners.
Contrary to petitioner's contention, respondents' failure to include an affidavit by someone with personal knowledge does not render their factual assertions speculative, since the corporate books and records they submitted may constitute admissible evidence ( Hamiltonian Corp. v. Trinity Ctr. LLC, 66 A.D.3d 517, 887 N.Y.S.2d 62 [1st Dept.2009];CPLR 4518[a] ).
However, the parties' conflicting assertions and the inconsistent information in the corporate documents raise issues of fact, including the validity of the documents, that preclude a summary determination of petitioner's ownership status ( see Matter of Singer v. Evergreen Decorators, 205 A.D.2d 694, 613 N.Y.S.2d 667 [2d Dept.1994] ).