Kolmer-Marcus, Inc. v. Winer

Appellate Division of the Supreme Court of New York

Kolmer-Marcus, Inc. v. Winer

32 A.D.2d 763, 300 N.Y.S.2d 952, 1969 N.Y. App. Div. LEXIS 3662

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

DecidedJune 19, 1969

StatusPublished

Cited by8 cases

This text of 32 A.D.2d 763 (Kolmer-Marcus, Inc. v. Winer) 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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Kolmer-Marcus, Inc. v. Winer, 32 A.D.2d 763, 300 N.Y.S.2d 952, 1969 N.Y. App. Div. LEXIS 3662 (N.Y. Ct. App. 1969).

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Memorandum. Order entered January 24, 1969 pursuant to CPLR 7503 (subd. [a]), directing arbitration, is affirmed, with $30 costs and disbursements. Special Term has correctly construed the option agreement dated December 31, 1954 entered into between defendant-respondent’s testator and the plaintiff. That agreement established the purchase price of $120,000 [764]*764only until November, 1955. Thereafter the purchase price was to be fixed annually each November by mutual agreement in writing and if the parties failed to agree, the price was to be fixed by arbitrators. The price-fixing procedures were not followed during the life of the testator. Plaintiff, although not a party to the agreement, was a beneficiary thereunder and the alter ego of Jack Marcus and other members of the Marcus family. It is plaintiff who has commenced this action seeking to enforce the agreement.

A dispute has arisen between the corporate plaintiff and decedent’s executor concerning the price to be paid for the stock of the corporate plaintiff owned by the decedent at the time of his death. Kolmer’s executor stands in the place of his testator and is entitled to enforce the contract arbitration provision. (See Matter of Buccini v. Paterno Constr. Co., 253 N. Y. 256, 259.) Special Term correctly held that the price for decedent’s stock must be determined by arbitration pursuant to the terms of the agreement.

Special Term properly observed: “ The well-settled rules of construction as between the conflicting interpretations of the terms and expressions involved herein require due consideration to all parts of the subject agreement, so as to give effect and meaning to the intentions of the parties which best accords with the sense of the remainder of the agreement as expressed in the unequivocal language employed.” In this connection, it is noted that the stock option provisions of the agreement have but one dominant purpose, i.e., to provide a means of smooth transition and fair evaluation of Kolmer’s interest at the time of his death, and the agreement should be construed to effectuate that purpose. Accordingly, it is untenable to argue that the arbitration process was restricted to the lifetime of Kolmer, when it had no real meaning, and rejected at the time of his death, when most meaningful. Although not initially raised at Special Term, plaintiff-appellant now urges (1) that the plaintiff corporation not a signatory to the agreement is not bound by its terms to arbitrate the issue of purchase price; (2) that Jack Marcus and the other Marcus family signatories are necessary parties; and (3) that by his laches in demanding arbitration, defendant executor waived his right to demand arbitration. These issues are entitled to little consideration when raised for the first time on appeal (see Rentways, Inc. v. O’Neill Milk & Cream Co., 308 N. Y. 342, 349; Dunning v. Dunning, 300 N. Y. 341) and, in any event, clearly lack merit.

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Memorandum. Order entered January 24, 1969 pursuant to CPLR 7503 (subd. [a]), directing arbitration, is affirmed, with $30 costs and disbursements. Special Term has correctly construed the option agreement dated December 31, 1954 entered into between defendant-respondent’s testator and the plaintiff. That agreement established the purchase price of $120,000 [764]*764only until November, 1955. Thereafter the purchase price was to be fixed annually each November by mutual agreement in writing and if the parties failed to agree, the price was to be fixed by arbitrators. The price-fixing procedures were not followed during the life of the testator. Plaintiff, although not a party to the agreement, was a beneficiary thereunder and the alter ego of Jack Marcus and other members of the Marcus family. It is plaintiff who has commenced this action seeking to enforce the agreement.

A dispute has arisen between the corporate plaintiff and decedent’s executor concerning the price to be paid for the stock of the corporate plaintiff owned by the decedent at the time of his death. Kolmer’s executor stands in the place of his testator and is entitled to enforce the contract arbitration provision. (See Matter of Buccini v. Paterno Constr. Co., 253 N. Y. 256, 259.) Special Term correctly held that the price for decedent’s stock must be determined by arbitration pursuant to the terms of the agreement.

Special Term properly observed: “ The well-settled rules of construction as between the conflicting interpretations of the terms and expressions involved herein require due consideration to all parts of the subject agreement, so as to give effect and meaning to the intentions of the parties which best accords with the sense of the remainder of the agreement as expressed in the unequivocal language employed.” In this connection, it is noted that the stock option provisions of the agreement have but one dominant purpose, i.e., to provide a means of smooth transition and fair evaluation of Kolmer’s interest at the time of his death, and the agreement should be construed to effectuate that purpose. Accordingly, it is untenable to argue that the arbitration process was restricted to the lifetime of Kolmer, when it had no real meaning, and rejected at the time of his death, when most meaningful. Although not initially raised at Special Term, plaintiff-appellant now urges (1) that the plaintiff corporation not a signatory to the agreement is not bound by its terms to arbitrate the issue of purchase price; (2) that Jack Marcus and the other Marcus family signatories are necessary parties; and (3) that by his laches in demanding arbitration, defendant executor waived his right to demand arbitration. These issues are entitled to little consideration when raised for the first time on appeal (see Rentways, Inc. v. O’Neill Milk & Cream Co., 308 N. Y. 342, 349; Dunning v. Dunning, 300 N. Y. 341) and, in any event, clearly lack merit.

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32 A.D.2d 763, 300 N.Y.S.2d 952, 1969 N.Y. App. Div. LEXIS 3662, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kolmer-marcus-inc-v-winer-nyappdiv-1969.

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