Dunay v. Weisglass

429 N.E.2d 92, 54 N.Y.2d 25, 444 N.Y.S.2d 573, 1981 N.Y. LEXIS 3064
CourtNew York Court of Appeals
DecidedOctober 22, 1981
StatusPublished
Cited by13 cases

This text of 429 N.E.2d 92 (Dunay v. Weisglass) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dunay v. Weisglass, 429 N.E.2d 92, 54 N.Y.2d 25, 444 N.Y.S.2d 573, 1981 N.Y. LEXIS 3064 (N.Y. 1981).

Opinion

OPINION OF THE COURT

Meyer, J.

Arbitration is required, under both the member-member and the member-nonmember clauses of the arbitration provision of the New York Stock Exchange constitution, of a dispute concerning the ownership of shares in a member corporation obtained by, and held in the name of, an allied member before his membership lapsed, where the parties thereafter demanding arbitration, though not members at any time that the shareholder was, have since become allied members, and acquisition of the shares was, at least in part, for the purpose of affecting the management and control of the member corporation by whom all of the parties to the arbitration demand were employed. The order of the Appellate Division should, therefore, be reversed.

In May, 1974, appellants Koenig and Weisglass orally agreed with respondent Dunay to establish an unincorporated brokerage firm and divide the profits and losses equally. The resulting joint venture affiliated in May, 1974 with respondent Ladenburg, Thalmann & Co., Inc., an already established brokerage firm and a, member of the New York Stock Exchange. Dunay became the president of [29]*29Ladenburg and an allied member of the Exchange. Allied membership is available to any principal executive officer of a member corporation who agrees to abide by the Exchange constitution (New York Stock Exchange Constitution, art 1, § 3, subd [d]).

In the fall of 1975, Dunay purchased in his own name 13,500 shares of Ladenburg stock which, through the declaration of a dividend, subsequently increased to 16,200 shares. A written memorandum of understanding, addressed by Dunay to Koenig and Weisglass on October 15, 1975 and accepted by them, provided: “In view of the fact that you and we share equally in the monies earned by the Institutional Sales Department of Ladenburg, Thalmann & Co. Inc. allocated to our group, this will confirm that I intend to share equally with you any gain realized upon any sale of these shares (it being understood that the timing and terms of any such sale shall be in my sole discretion) on condition that at the time of any such sale you and I continue to be employed by Ladenburg and that the arrangements by and among us are substantially the same at such time.” An October, 1977 agreement entered into by shareholders of Ladenburg, and signed by Dunay and Weisglass, but not by Koenig, restricted sale or transfer of Ladenburg shares and recited that it was intended “to assure the continued orderly management and growth” of the corporation.

Dunay’s employment with Ladenburg and his allied membership in the Exchange ended in May, 1979. He then instituted an action against Koenig, Weisglass and others, for an accounting of the joint venture’s assets. That action is still pending in Supreme Court. One month later, in June, 1979, Dunay tendered more than 21,000 Ladenburg shares to the corporation for repurchase in accordance with the shareholders agreement. Koenig and Weisglass, however, informed Ladenburg that 16,200 out of the 21,000 shares had been held by Dunay on behalf of the joint venture and requested an adjustment of corporate records to show ownership by them of two thirds of the stock so held, or 10,800 shares.

After Ladenburg refused to comply with that request, Koenig and Weisglass, who had become allied members of [30]*30the Exchange after Dunay’s membership terminated, demanded arbitration of their claim against Dunay and Ladenburg pursuant to the arbitration provision contained in the Exchange constitution. Specifically, they alleged that they had been misled into signing the October 15, 1975 memorandum, that the memorandum did not reflect the understanding of the parties that they shared equally in the stock, and that the stock had been purchased in Dunay’s name merely as an administrative convenience.

Dunay then initiated this proceeding to stay arbitration. Koenig and Weisglass submitted a cross application to compel arbitration. Ladenburg took no position. Supreme Court dismissed Dunay’s application, granted the application of Koenig and Weisglass and directed all parties to proceed to arbitration. The Appellate Division unanimously reversed and granted the stay. Koenig and Weisglass appealed as of right to our court. We, in turn, reverse the Appellate Division and reinstate Supreme Court’s order directing the parties to arbitrate.

The sole issue before us concerns the right of Koenig and Weisglass to demand arbitration under the New York Stock Exchange constitution,

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Cite This Page — Counsel Stack

Bluebook (online)
429 N.E.2d 92, 54 N.Y.2d 25, 444 N.Y.S.2d 573, 1981 N.Y. LEXIS 3064, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunay-v-weisglass-ny-1981.