Baker v. Winter

Appellate Division of the Supreme Court of New York

Baker v. Winter

12 A.D.3d 304, 784 N.Y.S.2d 853, 2004 N.Y. App. Div. LEXIS 14178

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 23, 2004

StatusPublished

This text of 12 A.D.3d 304 (Baker v. Winter) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Baker v. Winter, 12 A.D.3d 304, 784 N.Y.S.2d 853, 2004 N.Y. App. Div. LEXIS 14178 (N.Y. Ct. App. 2004).

Pincite

Opinion

[305]*305Order, Supreme Court, New York County (Charles E. Ramos, J.), entered on or about July 14, 2004, which, inter alia, granted plaintiff a preliminary injunction severing the relationship of defendants Bruce Winter and Dominic Dioguardi with plaintiff Gouda, Inc., unanimously affirmed, with costs.

In view of the ample evidence of corporate waste and fraud, the court properly exercised its discretion in issuing a preliminary injunction. The evidence as to the extent of the alleged fraud, and the number of years over which it occurred, is supportive of the injunction’s breadth. While the viability of the individual causes of action will be adjudicated in the context of the pending motion to dismiss, neither UCC 8-319 (since repealed) nor General Obligations Law § 5-701 (a) (1), the statutes of frauds upon which defendants rely, appear to be an impediment to the maintenance of this lawsuit. Additionally, Business Corporation Law § 720 empowers an officer to bring an action against another officer on behalf of the corporation, and the evidence strongly suggests that plaintiff Baker is an officer of plaintiff Gouda, Inc. Concur—Andrias, J.P., Sullivan, Ellerin, Lerner and Marlow, JJ.

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[305]*305Order, Supreme Court, New York County (Charles E. Ramos, J.), entered on or about July 14, 2004, which, inter alia, granted plaintiff a preliminary injunction severing the relationship of defendants Bruce Winter and Dominic Dioguardi with plaintiff Gouda, Inc., unanimously affirmed, with costs.

In view of the ample evidence of corporate waste and fraud, the court properly exercised its discretion in issuing a preliminary injunction. The evidence as to the extent of the alleged fraud, and the number of years over which it occurred, is supportive of the injunction’s breadth. While the viability of the individual causes of action will be adjudicated in the context of the pending motion to dismiss, neither UCC 8-319 (since repealed) nor General Obligations Law § 5-701 (a) (1), the statutes of frauds upon which defendants rely, appear to be an impediment to the maintenance of this lawsuit. Additionally, Business Corporation Law § 720 empowers an officer to bring an action against another officer on behalf of the corporation, and the evidence strongly suggests that plaintiff Baker is an officer of plaintiff Gouda, Inc. Concur—Andrias, J.P., Sullivan, Ellerin, Lerner and Marlow, JJ.

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Bluebook (online)

12 A.D.3d 304, 784 N.Y.S.2d 853, 2004 N.Y. App. Div. LEXIS 14178, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baker-v-winter-nyappdiv-2004.

Opinion

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