Benishai v. Ilan Properties, Inc.

Appellate Division of the Supreme Court of New York

Benishai v. Ilan Properties, Inc.

303 A.D.2d 226, 760 N.Y.S.2d 2, 2003 N.Y. App. Div. LEXIS 2514

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

DecidedMarch 13, 2003

StatusPublished

Cited by3 cases

This text of 303 A.D.2d 226 (Benishai v. Ilan Properties, Inc.) 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.

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Benishai v. Ilan Properties, Inc., 303 A.D.2d 226, 760 N.Y.S.2d 2, 2003 N.Y. App. Div. LEXIS 2514 (N.Y. Ct. App. 2003).

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Opinion

Order, Supreme Court, New York County (William Wetzel, J.), entered August 2, 2000, which denied respondents’ motion to dismiss the petition, unanimously affirmed, and order, same court and Justice, entered June 13, 2002, which, inter alia, granted petitioner’s motion to confirm the report of the Special Referee, and granted the petition, unanimously modified, on the law and the facts, solely to the extent of clarifying that the relief granted is for an inspection of respondent corporation’s books and records pursuant to Business Corporation Law § 624, and otherwise affirmed, all with one bill of costs against appellants.

There is no reason to disturb the finding of the Special Referee that petitioner had not transferred her interest in respondent corporation since that finding, based largely on determinations of credibility, was substantially supported by the record. While containing no documentary evidence of any transfer of petitioner’s interest, the record includes documents postdating the alleged transfer, indicating that petitioner was still a shareholder (see Vastwin Invs. v Aquarius Media Corp., 295 AD2d 216, 217 [2002]).

Respondents’ contention that the proceeding was time-barred is without merit, since, contrary to the references by both the court and the parties, the petition clearly sought an inspection of corporate books and records, rather than an accounting, and petitioner’s written demand for such inspection was made only months before her commencement of this proceeding.

Although it is therefore unnecessary to address respondents’ limitations argument based on the contractual period, we note that petitioner’s request is not analogous to those in which shareholders seek to vindicate their status as such in order to obtain purely contractual relief (compare Stern v BSL Dev. Corp., 163 AD2d 35 [1990]; Local 381 Pension Fund v Chemical Bank, 222 AD2d 415 [1995], lv dismissed in part and denied in part 88 NY2d 830 [1996]).

The claimed evidentiary errors at the referee hearing were not advanced before the motion court in opposing confirmation of the report, and we decline to reach them at this juncture.

[227]*227We have considered respondents-appellants’ other contentions and find them unavailing. Concur — Buckley, P.J., Tom, Rosenberger, Lerner and Marlow, JJ.

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Order, Supreme Court, New York County (William Wetzel, J.), entered August 2, 2000, which denied respondents’ motion to dismiss the petition, unanimously affirmed, and order, same court and Justice, entered June 13, 2002, which, inter alia, granted petitioner’s motion to confirm the report of the Special Referee, and granted the petition, unanimously modified, on the law and the facts, solely to the extent of clarifying that the relief granted is for an inspection of respondent corporation’s books and records pursuant to Business Corporation Law § 624, and otherwise affirmed, all with one bill of costs against appellants.

There is no reason to disturb the finding of the Special Referee that petitioner had not transferred her interest in respondent corporation since that finding, based largely on determinations of credibility, was substantially supported by the record. While containing no documentary evidence of any transfer of petitioner’s interest, the record includes documents postdating the alleged transfer, indicating that petitioner was still a shareholder (see Vastwin Invs. v Aquarius Media Corp., 295 AD2d 216, 217 [2002]).

Respondents’ contention that the proceeding was time-barred is without merit, since, contrary to the references by both the court and the parties, the petition clearly sought an inspection of corporate books and records, rather than an accounting, and petitioner’s written demand for such inspection was made only months before her commencement of this proceeding.

Although it is therefore unnecessary to address respondents’ limitations argument based on the contractual period, we note that petitioner’s request is not analogous to those in which shareholders seek to vindicate their status as such in order to obtain purely contractual relief (compare Stern v BSL Dev. Corp., 163 AD2d 35 [1990]; Local 381 Pension Fund v Chemical Bank, 222 AD2d 415 [1995], lv dismissed in part and denied in part 88 NY2d 830 [1996]).

The claimed evidentiary errors at the referee hearing were not advanced before the motion court in opposing confirmation of the report, and we decline to reach them at this juncture.

[227]*227We have considered respondents-appellants’ other contentions and find them unavailing. Concur — Buckley, P.J., Tom, Rosenberger, Lerner and Marlow, JJ.

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303 A.D.2d 226, 760 N.Y.S.2d 2, 2003 N.Y. App. Div. LEXIS 2514, Counsel Stack Legal Research, https://law.counselstack.com/opinion/benishai-v-ilan-properties-inc-nyappdiv-2003.

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