Cutting Room Appliances Corp. v. Finkelstein

Appellate Division of the Supreme Court of New York

Cutting Room Appliances Corp. v. Finkelstein

33 A.D.2d 674, 305 N.Y.S.2d 348, 1969 N.Y. App. Div. LEXIS 2824

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

DecidedNovember 20, 1969

StatusPublished

Cited by6 cases

This text of 33 A.D.2d 674 (Cutting Room Appliances Corp. v. Finkelstein) 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

Cutting Room Appliances Corp. v. Finkelstein, 33 A.D.2d 674, 305 N.Y.S.2d 348, 1969 N.Y. App. Div. LEXIS 2824 (N.Y. Ct. App. 1969).

Pincite

Opinion

Order entered April 10, 1969, denying plaintiffs’ motion for summary judgment and granting defendant-respondent’s cross motion to compel arbitration, unanimously reversed, on the law, with $50 costs and disbursements to respondent, the cross motion to compel arbitration denied as academic and summary judgment granted to defendant-respondent dismissing the complaint. In this action for a judgment declaring invalid a stockholders’ agreement between the defendants, plaintiffs contend they are not parties to the agreement and, therefore, not bound to arbitrate as therein provided. Not being parties to the agreement, the plaintiffs are not real parties in interest and fail to establish jurisdiction to entertain this action. (Ivory v. Edwards, 278 App. Div. 359, 360, affd. 304 N. Y. 949.) Lack of jurisdiction may be noted by the court at any stage of the action, even if the parties purport to consent to jurisdiction. (Matter of Walker, 136 N. Y. 20, 30; Robinson v. Oceanic Steam Nav. Co., 112 N. Y. 315, 324.) Moreover, it does not appear there is a justiciable dispute. It is not alleged that any action or meeting of directors or officers has been or is about to foe affected by the agreement or that the parties to the agreement have voted or propose to vote or act as directors or officers under compulsion of the agreement. (Ivory v. Edwards, supra; Miskowitz v. Starobin, 181 Misc. 445, 449, affd. 267 App. Div. 866.) On a motion for summary judgment, the court may grant such judgment to a party other than the moving party without the necessity of a cross motion. (CPLR 3212, subd. [b].) The appeal from so much of the order as stays the action pending arbitration is dismissed as academic in view of the dismissal of the complaint. Concur —Capozzoli, J. P., Tilzer, Markewieh, Nunez and McNally, JJ.

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Order entered April 10, 1969, denying plaintiffs’ motion for summary judgment and granting defendant-respondent’s cross motion to compel arbitration, unanimously reversed, on the law, with $50 costs and disbursements to respondent, the cross motion to compel arbitration denied as academic and summary judgment granted to defendant-respondent dismissing the complaint. In this action for a judgment declaring invalid a stockholders’ agreement between the defendants, plaintiffs contend they are not parties to the agreement and, therefore, not bound to arbitrate as therein provided. Not being parties to the agreement, the plaintiffs are not real parties in interest and fail to establish jurisdiction to entertain this action. (Ivory v. Edwards, 278 App. Div. 359, 360, affd. 304 N. Y. 949.) Lack of jurisdiction may be noted by the court at any stage of the action, even if the parties purport to consent to jurisdiction. (Matter of Walker, 136 N. Y. 20, 30; Robinson v. Oceanic Steam Nav. Co., 112 N. Y. 315, 324.) Moreover, it does not appear there is a justiciable dispute. It is not alleged that any action or meeting of directors or officers has been or is about to foe affected by the agreement or that the parties to the agreement have voted or propose to vote or act as directors or officers under compulsion of the agreement. (Ivory v. Edwards, supra; Miskowitz v. Starobin, 181 Misc. 445, 449, affd. 267 App. Div. 866.) On a motion for summary judgment, the court may grant such judgment to a party other than the moving party without the necessity of a cross motion. (CPLR 3212, subd. [b].) The appeal from so much of the order as stays the action pending arbitration is dismissed as academic in view of the dismissal of the complaint. Concur —Capozzoli, J. P., Tilzer, Markewieh, Nunez and McNally, JJ.

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Bluebook (online)

33 A.D.2d 674, 305 N.Y.S.2d 348, 1969 N.Y. App. Div. LEXIS 2824, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cutting-room-appliances-corp-v-finkelstein-nyappdiv-1969.

Opinion

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