In re Ruivo

Appellate Division of the Supreme Court of New York

In re Ruivo

305 A.D.2d 688, 761 N.Y.S.2d 238

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

DecidedMay 27, 2003

StatusPublished

Cited by3 cases

This text of 305 A.D.2d 688 (In re Ruivo) 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

In re Ruivo, 305 A.D.2d 688, 761 N.Y.S.2d 238 (N.Y. Ct. App. 2003).

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Opinion

—In a proceeding pursuant to Business Corporation Law § 1104 (a) for judicial dissolution of a closely-held corporation, Brightside Homes, Ltd., appeals from an order of the Supreme Court, Suffolk County (Costello, J.), dated May 8, 2002, which, inter alia, denied its motion to dismiss the proceeding for lack of standing.

Ordered that the order is modified by adding a provision thereto directing the publication of an amended order to show cause in compliance with Business Corporation Law § 1106 (b); [689]*689as so modified, the order is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Suffolk County, for further proceedings consistent herewith.

The appellant, Brightside Homes, Ltd., a domestic corporation, raised an objection in point of law (see CPLR 404 [a]) challenging the standing of the petitioner to bring this proceeding. The corporation failed to establish lack of standing with any admissible evidence. The petitioner’s efforts to establish his standing were mired in confusion and unexecuted documents. Thus, he, too, failed to resolve the issue of his standing with admissible evidence. Accordingly, the Supreme Court correctly found that further disclosure and a hearing were necessary to determine whether the petitioner is a 50% shareholder of the corporation and therefore has standing to commence this proceeding for dissolution (see Business Corporation Law § 1104 [a]; Matter of Broder, 265 AD2d 218, 219 [1999]; Matter of Fancy Windows & Doors Mfg. Corp., 244 AD2d 484 [1997]; Matter of Kournianos, 175 AD2d 129 [1991]).

Contrary to the corporation’s contention, made for the first time on appeal, the failure of the order to show cause to provide for its publication was not fatal to the petition at this stage of the proceeding (see Business Corporation Law §§ 1106, 1107; Matter of WTB Props., 291 AD2d 566 [2002]). Accordingly, we modify the order appealed from by adding a provision thereto directing the publication of an amended order to show cause in accordance with Business Corporation Law § 1106 (a).

The corporation’s remaining contentions are without merit. Peuerstein, J.P., McGinity, Adams and Crane, JJ., concur.

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—In a proceeding pursuant to Business Corporation Law § 1104 (a) for judicial dissolution of a closely-held corporation, Brightside Homes, Ltd., appeals from an order of the Supreme Court, Suffolk County (Costello, J.), dated May 8, 2002, which, inter alia, denied its motion to dismiss the proceeding for lack of standing.

Ordered that the order is modified by adding a provision thereto directing the publication of an amended order to show cause in compliance with Business Corporation Law § 1106 (b); [689]*689as so modified, the order is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Suffolk County, for further proceedings consistent herewith.

The appellant, Brightside Homes, Ltd., a domestic corporation, raised an objection in point of law (see CPLR 404 [a]) challenging the standing of the petitioner to bring this proceeding. The corporation failed to establish lack of standing with any admissible evidence. The petitioner’s efforts to establish his standing were mired in confusion and unexecuted documents. Thus, he, too, failed to resolve the issue of his standing with admissible evidence. Accordingly, the Supreme Court correctly found that further disclosure and a hearing were necessary to determine whether the petitioner is a 50% shareholder of the corporation and therefore has standing to commence this proceeding for dissolution (see Business Corporation Law § 1104 [a]; Matter of Broder, 265 AD2d 218, 219 [1999]; Matter of Fancy Windows & Doors Mfg. Corp., 244 AD2d 484 [1997]; Matter of Kournianos, 175 AD2d 129 [1991]).

Contrary to the corporation’s contention, made for the first time on appeal, the failure of the order to show cause to provide for its publication was not fatal to the petition at this stage of the proceeding (see Business Corporation Law §§ 1106, 1107; Matter of WTB Props., 291 AD2d 566 [2002]). Accordingly, we modify the order appealed from by adding a provision thereto directing the publication of an amended order to show cause in accordance with Business Corporation Law § 1106 (a).

The corporation’s remaining contentions are without merit. Peuerstein, J.P., McGinity, Adams and Crane, JJ., concur.

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Bluebook (online)

305 A.D.2d 688, 761 N.Y.S.2d 238, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-ruivo-nyappdiv-2003.

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