Matter of Kline

Appellate Division of the Supreme Court of New York, Fourth DepartmentFeb 3, 1995
212 A.D.2d 1002 (N.Y. App. Div. 1995)
212 A.D.2d 1002623 N.Y.S.2d 40

February 3, 1995

Appeal from the Supreme Court, Onondaga County, Reagan, J.

Present — Green, J.P., Pine, Wesley, Davis and Boehm, JJ.


Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum:

Supreme Court properly granted summary judgment dismissing the petition seeking judicial dissolution of United Telecom Group, Inc. (UTG) pursuant to Business Corporation Law § 1104-a and directing that petitioner deliver his shares of stock to UTG upon payment of $7,766.66.

Petitioner, as limited by his brief (see, Ciesinski v. Town of Aurora, 202 A.D.2d 984), does not argue on appeal that there are issues of fact concerning the redemption price of the stock pursuant to the stock redemption agreement. Petitioner contends only that the stock redemption agreement did not cover a forced redemption and, therefore, the court erred in not holding a hearing to determine the fair value of the stock pursuant to Business Corporation Law § 1118 (a) (see, Matter of Pace Photographers [Rosen], 71 N.Y.2d 737, 746-748). A hearing is required only when there is some contested issue determinative of the application (see, Matter of Goodman v. Lovett, 200 A.D.2d 670, lv dismissed 84 N.Y.2d 850). In light of the uncontested submissions of respondent that the stock had no fair market value, we conclude that the court appropriately applied the stock redemption agreement. The stock redemption agreement covered involuntary redemptions and served as the only basis from which the court could fix the fair value of the stock (see, Business Corporation Law § 1118 [a]; Matter of Seagroatt Floral Co. [Riccardi], 78 N.Y.2d 439, 445; Matter of Pace Photographers [Rosen], supra).

It was unnecessary for the court to grant judgment on UTG's second affirmative defense and counterclaim in light of its determination to award judgment on UTG's first affirmative defense and counterclaim. We, therefore, vacate the grant of judgment on UTG's second affirmative defense and counterclaim.