Opinion
March 25, 1996
Appeal from the Supreme Court, Westchester County (Fredman, J.).
Ordered that the appeal from the order entered July 7, 1994, is dismissed, as that order was superseded by the order entered January 6, 1995, made upon renewal; and it is further,
Ordered that the order entered January 6, 1995, is affirmed insofar as appealed from; and it is further,
Ordered that the respondent is awarded one bill of costs.
The court properly concluded that there never existed an enforceable agreement between the petitioner and his brother, the respondent, to partition the company that they acquired from their late father ( see, Brause v Goldman, 10 A.D.2d 328, 332, affd 9 N.Y.2d 620; see also, Brands v Urban, 182 A.D.2d 287).
The court did not err in concluding that, under the circumstances, the petitioner failed to demonstrate that the dissension between him and the respondent has resulted in a deadlock precluding the successful and profitable conduct of the corporation's affairs ( see, Matter of Sternberg, 181 A.D.2d 897; Matter of Ronan Paint Corp., 98 A.D.2d 413, 422). In determining whether dissolution is in order, the issue is not who is at fault for a deadlock, but whether a deadlock exists ( see, Matter of Goodman v Lovett, 200 A.D.2d 670; Matter of Ronan Paint Corp., supra; Matter of Gordon Weiss, 32 A.D.2d 279, 280-281). Here, the petitioner did not show that the disagreements between him and the respondent posed an irreconcilable barrier to the continued functioning and prosperity of the corporation ( cf., Matter of Sheridan Constr. Corp., 22 A.D.2d 390, 391-392, affd 16 N.Y.2d 680; Matter of Ronan Paint Corp., supra, at 421; Matter of Pivot Punch Die Corp., 15 Misc.2d 713, 717, mod on other grounds 9 A.D.2d 861). Similarly, the court properly found, upon renewal, that dissolution was not warranted by the events alleged by the petitioner to have occurred after the petition was filed.
The petitioner's contention that an evidentiary hearing was mandated by law is without merit. A hearing would have been required only if there were some contested issue determinative of the validity of the petitioner's application ( see, Matter of Goodman v Lovett, supra; Matter of Garay v Langer, 37 A.D.2d 545, affd 30 N.Y.2d 493; Matter of Gordon Weiss, supra). Copertino, J.P., Pizzuto, Friedmann and McGinity, JJ., concur.