Gannone v. Wittman

Appellate Division of the Supreme Court of New York

Gannone v. Wittman

201 A.D.2d 433, 609 N.Y.S.2d 774

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

DecidedFebruary 24, 1994

StatusPublished

This text of 201 A.D.2d 433 (Gannone v. Wittman) 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.

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Gannone v. Wittman, 201 A.D.2d 433, 609 N.Y.S.2d 774 (N.Y. Ct. App. 1994).

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Opinion

Order, Supreme Court, New York County (Carmen Beauchamp Ciparick, J.), entered January 26, 1993, which denied defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (7), unanimously affirmed, without costs.

The IAS Court properly concluded that plaintiffs’ claim under Business Corporation Law § 630 and the Collective Bargaining Agreement should not be subject to dismissal for failure to state a cause of action. Because we agree that "termination of such services” under Business Corporation Law § 630 (a) should be construed as the termination of the employment relationship, we affirm the trial court’s conclusion that the action was timely commenced (see, Burns v Siento, 9 NYS2d 736).

Furthermore, we agree that defendant’s claim that his liability is conclusively limited to debts incurred after July 20, 1990 cannot be decided on a pre-answer motion to dismiss pursuant to CPLR 3211 (a) (7) because sufficient evidence to support this conclusion has not been presented at this stage in the litigation. Concur — Rosenberger, J. P., Ross, Asch, Rubin and Williams, JJ.

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Order, Supreme Court, New York County (Carmen Beauchamp Ciparick, J.), entered January 26, 1993, which denied defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (7), unanimously affirmed, without costs.

The IAS Court properly concluded that plaintiffs’ claim under Business Corporation Law § 630 and the Collective Bargaining Agreement should not be subject to dismissal for failure to state a cause of action. Because we agree that "termination of such services” under Business Corporation Law § 630 (a) should be construed as the termination of the employment relationship, we affirm the trial court’s conclusion that the action was timely commenced (see, Burns v Siento, 9 NYS2d 736).

Furthermore, we agree that defendant’s claim that his liability is conclusively limited to debts incurred after July 20, 1990 cannot be decided on a pre-answer motion to dismiss pursuant to CPLR 3211 (a) (7) because sufficient evidence to support this conclusion has not been presented at this stage in the litigation. Concur — Rosenberger, J. P., Ross, Asch, Rubin and Williams, JJ.

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Bluebook (online)

201 A.D.2d 433, 609 N.Y.S.2d 774, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gannone-v-wittman-nyappdiv-1994.

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