In re the Dissolution of Tosca Brick Oven Bread, Inc.

Appellate Division of the Supreme Court of New York

In re the Dissolution of Tosca Brick Oven Bread, Inc.

243 A.D.2d 416, 665 N.Y.S.2d 252, 1997 N.Y. App. Div. LEXIS 10850

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

DecidedOctober 30, 1997

StatusPublished

Cited by5 cases

This text of 243 A.D.2d 416 (In re the Dissolution of Tosca Brick Oven Bread, Inc.) 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 the Dissolution of Tosca Brick Oven Bread, Inc., 243 A.D.2d 416, 665 N.Y.S.2d 252, 1997 N.Y. App. Div. LEXIS 10850 (N.Y. Ct. App. 1997).

Pincite

Opinion

Order, Supreme Court, Bronx County (Luis Gonzalez, J.), entered January 2, 1997, which granted petitioner’s motion to dissolve the corporation pursuant to Business Corporation Law § 1104-a and required respondents to provide a fall accounting of the assets, books and records of the corporation, unanimously reversed, on the law and the facts and in the exercise of discretion, without costs or disbursements, petitioner’s motion for dissolution denied, respondents’ cross motion for consolidation of this proceeding with Tosca Brick Oven Bread v Lubena (Bronx County index No. 6042/96) granted, and the matter remanded for further proceedings.

Business Corporation Law § 1118 (b) provides that if a shareholder elects to purchase the shares owned by the petitioner but is unable to agree with the petitioner upon the fair value of such shares, as here, the court, upon the application of the prospective purchaser, “may stay the proceedings * * * and determine the fair value of the petitioner’s shares as of the day prior to the date on which such petition was filed, exclusive of any element of value arising from such filing”. Despite respondents’ timely election to purchase petitioner’s shares and request for a hearing to determine the fair value of the shares, the IAS Court granted dissolution without holding such a hearing. In the circumstances, this was error.

In addition, the court erred in denying, sub silentio, respondents’ motion to consolidate this proceeding with Tosca Brick Oven Bread v Lubena. Respondents allege in that action, inter alia, that petitioner has misappropriated the corporation’s assets and destroyed its business in favor of a competing bakery that he opened. It is clear that the issues in that action are inextricably intertwined with the determination of “fair value” of petitioner’s shares. (See, Matter of Gene Barry One Hour Photo Process, 111 Misc 2d 559, 567.) Concur—Sullivan, J. P., Rosenberger, Rubin and Andrias, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Order, Supreme Court, Bronx County (Luis Gonzalez, J.), entered January 2, 1997, which granted petitioner’s motion to dissolve the corporation pursuant to Business Corporation Law § 1104-a and required respondents to provide a fall accounting of the assets, books and records of the corporation, unanimously reversed, on the law and the facts and in the exercise of discretion, without costs or disbursements, petitioner’s motion for dissolution denied, respondents’ cross motion for consolidation of this proceeding with Tosca Brick Oven Bread v Lubena (Bronx County index No. 6042/96) granted, and the matter remanded for further proceedings.

Business Corporation Law § 1118 (b) provides that if a shareholder elects to purchase the shares owned by the petitioner but is unable to agree with the petitioner upon the fair value of such shares, as here, the court, upon the application of the prospective purchaser, “may stay the proceedings * * * and determine the fair value of the petitioner’s shares as of the day prior to the date on which such petition was filed, exclusive of any element of value arising from such filing”. Despite respondents’ timely election to purchase petitioner’s shares and request for a hearing to determine the fair value of the shares, the IAS Court granted dissolution without holding such a hearing. In the circumstances, this was error.

In addition, the court erred in denying, sub silentio, respondents’ motion to consolidate this proceeding with Tosca Brick Oven Bread v Lubena. Respondents allege in that action, inter alia, that petitioner has misappropriated the corporation’s assets and destroyed its business in favor of a competing bakery that he opened. It is clear that the issues in that action are inextricably intertwined with the determination of “fair value” of petitioner’s shares. (See, Matter of Gene Barry One Hour Photo Process, 111 Misc 2d 559, 567.) Concur—Sullivan, J. P., Rosenberger, Rubin and Andrias, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

243 A.D.2d 416, 665 N.Y.S.2d 252, 1997 N.Y. App. Div. LEXIS 10850, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-dissolution-of-tosca-brick-oven-bread-inc-nyappdiv-1997.

Opinion

Related

Cite This Page — Counsel Stack