Delcath Systems, Inc. v. Kemp

Appellate Division of the Supreme Court of New York

Delcath Systems, Inc. v. Kemp

260 A.D.2d 259, 688 N.Y.S.2d 537, 1999 N.Y. App. Div. LEXIS 4187

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

DecidedApril 20, 1999

StatusPublished

This text of 260 A.D.2d 259 (Delcath Systems, Inc. v. Kemp) 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

Delcath Systems, Inc. v. Kemp, 260 A.D.2d 259, 688 N.Y.S.2d 537, 1999 N.Y. App. Div. LEXIS 4187 (N.Y. Ct. App. 1999).

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Opinion

—Judgment, Supreme Court, New York County (Raymond Cornelius, J.), entered on or about March 6, 1998, after a nonjury trial, awarding plaintiff specific performance of its contract to repurchase 10,000 shares of its common stock at $.50 per share from defendant, directing defendant to deliver to plaintiff a duly executed stock power in exchange for $5,000, dismissing defendant’s counterclaims, [260]*260and. awarding plaintiff costs and disbursements, unanimously affirmed, with costs.

Contrary to defendant’s contention, plaintiffs proof at trial sufficiently established the existence and terms of an agreement entitling plaintiff to repurchase 10,000 shares of its common stock from defendant. Defendant’s further contention that the repurchase agreement violated the rule against perpetuities was never pleaded as an affirmative defense and, in any case, lacks merit, since under governing Delaware law the rule against perpetuities does not apply to stock option agreements (see, Kingston v Home Life Ins. Co., 11 Del Ch 258, 265, 101 A 898, 901, affd 11 Del Ch 428, 104 A 25). We have examined defendant’s remaining contentions and find them to be unavailing. Concur — Sullivan, J. P., Wallach, Lerner, Mazzarelli and Buckley, JJ.

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—Judgment, Supreme Court, New York County (Raymond Cornelius, J.), entered on or about March 6, 1998, after a nonjury trial, awarding plaintiff specific performance of its contract to repurchase 10,000 shares of its common stock at $.50 per share from defendant, directing defendant to deliver to plaintiff a duly executed stock power in exchange for $5,000, dismissing defendant’s counterclaims, [260]*260and. awarding plaintiff costs and disbursements, unanimously affirmed, with costs.

Contrary to defendant’s contention, plaintiffs proof at trial sufficiently established the existence and terms of an agreement entitling plaintiff to repurchase 10,000 shares of its common stock from defendant. Defendant’s further contention that the repurchase agreement violated the rule against perpetuities was never pleaded as an affirmative defense and, in any case, lacks merit, since under governing Delaware law the rule against perpetuities does not apply to stock option agreements (see, Kingston v Home Life Ins. Co., 11 Del Ch 258, 265, 101 A 898, 901, affd 11 Del Ch 428, 104 A 25). We have examined defendant’s remaining contentions and find them to be unavailing. Concur — Sullivan, J. P., Wallach, Lerner, Mazzarelli and Buckley, JJ.

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Bluebook (online)

260 A.D.2d 259, 688 N.Y.S.2d 537, 1999 N.Y. App. Div. LEXIS 4187, Counsel Stack Legal Research, https://law.counselstack.com/opinion/delcath-systems-inc-v-kemp-nyappdiv-1999.