Brisimitzakis v. A. B. Machine Works, Inc.

Appellate Division of the Supreme Court of New York

Brisimitzakis v. A. B. Machine Works, Inc.

118 A.D.2d 568, 499 N.Y.S.2d 179, 1986 N.Y. App. Div. LEXIS 54425

Appellate Division of the Supreme Court of the State of New York·Decided March 3, 1986·Published·Cited by 1 cases

Opinion

In a proceeding pursuant to Business Corporation Law § 1104-a seeking a judicial dissolution of a closely held corporation, the appeal is from an order of the Supreme Court, Kings County (Hellenbrand, J.), dated October 10, 1984, which denied the motion of A. B. Machine Works, Inc. pursuant to CPLR 3211 (a) (7) to dismiss the petition for failure to state a cause of action, or, in the alternative, pursuant to CPLR 3212 for summary judgment in its favor.

Order affirmed, with costs.

Special Term properly denied the appellant’s motion to dismiss the petition, pursuant to either CPLR 3211 (a) (7) or 3212. The petition, together with the petitioner’s affidavit in opposition to the motion, is sufficient to withstand dismissal pursuant to CPLR 3211 (a) (7). "[AJffidavits may be used freely to preserve inartfully pleaded, but potentially meritorious, claims” (Rovello v Orofino Realty Co., 40 NY2d 633, 635). In addition, the affidavits submitted by the parties raise questions of fact with respect to the petitioner’s cause of action, pursuant to Business Corporation Law § 1104-a, thereby warranting denial of summary judgment in favor of the appellant (see, Matter of Mintz [Astoria Holding Corp.], 113 AD2d 803). Bracken, J. P., Niehoff, Rubin and Lawrence, JJ., concur.

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In a proceeding pursuant to Business Corporation Law § 1104-a seeking a judicial dissolution of a closely held corporation, the appeal is from an order of the Supreme Court, Kings County (Hellenbrand, J.), dated October 10, 1984, which denied the motion of A. B. Machine Works, Inc. pursuant to CPLR 3211 (a) (7) to dismiss the petition for failure to state a cause of action, or, in the alternative, pursuant to CPLR 3212 for summary judgment in its favor.

Order affirmed, with costs.

Special Term properly denied the appellant’s motion to dismiss the petition, pursuant to either CPLR 3211 (a) (7) or 3212. The petition, together with the petitioner’s affidavit in opposition to the motion, is sufficient to withstand dismissal pursuant to CPLR 3211 (a) (7). "[AJffidavits may be used freely to preserve inartfully pleaded, but potentially meritorious, claims” (Rovello v Orofino Realty Co., 40 NY2d 633, 635). In addition, the affidavits submitted by the parties raise questions of fact with respect to the petitioner’s cause of action, pursuant to Business Corporation Law § 1104-a, thereby warranting denial of summary judgment in favor of the appellant (see, Matter of Mintz [Astoria Holding Corp.], 113 AD2d 803). Bracken, J. P., Niehoff, Rubin and Lawrence, JJ., concur.

Brisimitzakis v. A. B. Machine Works, Inc., 118 A.D.2d 568, 499 N.Y.S.2d 179, 1986 N.Y. App. Div. LEXIS 54425 (N.Y. Ct. App. 1986).

Pincite

118 A.D.2d 568 (Brisimitzakis v. A. B. Machine Works, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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