Physicians' Online, Inc. v. Burnett

244 A.D.2d 291, 664 N.Y.S.2d 301, 1997 N.Y. App. Div. LEXIS 11886

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 25, 1997
• Status: Published

Opinion

—Order, Supreme Court, New York County (Lewis Friedman, J.), entered November 26, 1996, which granted plaintiff corporation’s motion to renew its motion for summary judgment, and, upon renewal, granted summary judgment in favor of plaintiff declaring that it validly terminated defendant as one of its officers and directors, unanimously affirmed, without costs.

Plaintiff’s motion to renew its prior motion for summary judgment was properly granted as an appropriate exercise of discretion on the ground that the prior order, issued by a different IAS Court, “ ‘clearly invited a motion to renew’ ” in stating that it could not be determined, “ ‘at this juncture’ ”, whether plaintiff’s bylaws had been validly amended so as to permit termination of officers and directors without cause, because of the omission from the record of the written consent of the requisite number of shareholders necessary to amend the bylaws (see, Pinto v Pinto, 120 AD2d 337, 338). Upon renewal, plaintiff’s motion for summary judgment was properly granted upon overwhelming evidence, uncontroverted by defendant, that plaintiff’s bylaws were validly amended upon the written consent of the requisite number of shareholders, and that defendant’s termination as both an officer and director of plaintiff was in accordance with the bylaws as amended. There is no merit to defendant’s contention that summary judgment should be denied to allow further disclosure (see, Frierson v Concourse Plaza Assocs., 189 AD2d 609, 610). Concur—Milonas, J. P., Rosenberger, Rubin, Williams and Colabella, JJ.