Chemical Bank v. Colonna

Appellate Division of the Supreme Court of New York

Chemical Bank v. Colonna

208 A.D.2d 583, 618 N.Y.S.2d 243, 1994 N.Y. App. Div. LEXIS 9577

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

DecidedOctober 11, 1994

StatusPublished

This text of 208 A.D.2d 583 (Chemical Bank v. Colonna) 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

Chemical Bank v. Colonna, 208 A.D.2d 583, 618 N.Y.S.2d 243, 1994 N.Y. App. Div. LEXIS 9577 (N.Y. Ct. App. 1994).

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Opinion

In a mortgage foreclosure action, the defendant Dolores Colonna appeals from an [584]*584order of the Supreme Court, Putnam County (Hickman, J.), dated February 16, 1993, which granted the plaintiff’s motion for partial summary judgment dismissing her first affirmative defense and counterclaim.

Ordered that the order is affirmed, with costs.

The Supreme Court correctly dismissed the appellant Dolores Colonna’s counterclaim for failure to comply with Business Corporation Law § 909. While the statute requires, inter alia, that approval of the board of directors and two-thirds of the shareholders is necessary for the conveyance of all or substantially all of the assets of a corporation, it further provides that a claim to set aside a conveyance for lack of such approval "may not be maintained * * * unless * * * commenced within one year after such conveyance * * * is recorded” (Business Corporation Law § 909 [c]). Inasmuch as the challenged conveyance in this case was recorded more than one year prior to the assertion of the counterclaim, the appellant failed to comply with the statute.

Moreover, we agree with the Supreme Court that the respondent has established its status as a bona fide mortgagee for value as a matter of law (see, Real Property Law § 266).

We have considered the appellant’s remaining contentions and find them to be without merit. Sullivan, J. P., Balletta, Rosenblatt and Florio, JJ., concur.

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In a mortgage foreclosure action, the defendant Dolores Colonna appeals from an [584]*584order of the Supreme Court, Putnam County (Hickman, J.), dated February 16, 1993, which granted the plaintiff’s motion for partial summary judgment dismissing her first affirmative defense and counterclaim.

Ordered that the order is affirmed, with costs.

The Supreme Court correctly dismissed the appellant Dolores Colonna’s counterclaim for failure to comply with Business Corporation Law § 909. While the statute requires, inter alia, that approval of the board of directors and two-thirds of the shareholders is necessary for the conveyance of all or substantially all of the assets of a corporation, it further provides that a claim to set aside a conveyance for lack of such approval "may not be maintained * * * unless * * * commenced within one year after such conveyance * * * is recorded” (Business Corporation Law § 909 [c]). Inasmuch as the challenged conveyance in this case was recorded more than one year prior to the assertion of the counterclaim, the appellant failed to comply with the statute.

Moreover, we agree with the Supreme Court that the respondent has established its status as a bona fide mortgagee for value as a matter of law (see, Real Property Law § 266).

We have considered the appellant’s remaining contentions and find them to be without merit. Sullivan, J. P., Balletta, Rosenblatt and Florio, JJ., concur.

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Bluebook (online)

208 A.D.2d 583, 618 N.Y.S.2d 243, 1994 N.Y. App. Div. LEXIS 9577, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chemical-bank-v-colonna-nyappdiv-1994.

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