Opinion
February 1, 1991
Appeal from the Supreme Court, Orleans County, Miles, J.
Present — Callahan, J.P., Doerr, Boomer, Pine and Balio, JJ.
Order unanimously reversed on the law without costs, cross motion granted, petition dismissed and cross claim granted, in accordance with the following Memorandum: Supreme Court erred in denying respondents' cross motion for summary judgment dismissing the petition for judicial dissolution of respondent corporation and also in denying respondents summary judgment on their cross claim for an order compelling petitioner to specifically perform her obligations under a stock redemption agreement executed by her deceased husband in 1973. Petitioner submitted no evidence to controvert respondents' demonstration that the corporation's shareholders entered into agreements in 1970 and 1973 providing for the redemption of corporate stock upon the death of a shareholder. Petitioner failed, therefore, to raise a triable issue of fact sufficient to preclude summary judgment on respondents' cross claim. The corporation, upon the death of petitioner's husband, gave timely notice of its intent to redeem the husband's shares of stock and tendered the agreed-upon price. Under the circumstances, respondents were entitled to an order directing petitioner to transfer the stock owned by decedent to the corporation pursuant to the 1973 agreement. Because petitioner is no longer the lawful holder of a stock interest in the corporation, respondents' cross motion for summary judgment dismissing her petition for judicial dissolution of the corporation pursuant to section 1104-a Bus. Corp. of the Business Corporation Law should have been granted.