Pope v. Halloran

76 A.D.2d 770, 428 N.Y.S.2d 957, 1980 N.Y. App. Div. LEXIS 11813

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 12, 1980
• Status: Published

Opinions

Order, Supreme Court, New York County, entered December 24, 1979, granting summary judgment dismissing the complaint, and denying plaintiff’s motion for summary judgment and other relief, is affirmed, with costs to defendant-respondent. In the present action, plaintiff, claiming to be a former employee of the corporation De Pasquale Brothers, Inc., seeks to hold defendant Halloran liable for alleged unpaid wages and commissions under section 630 of the Business Corporation Law. That statute makes the 10 largest shareholders of a corporation liable for all such wages or salaries. However, the statute provides: "Before such laborer, servant or employee shall charge such shareholder for such services, he shall give notice in writing to such shareholder that he intends to hold him liable under this section. Such notice shall be given within ninety days after termination of such services”. The only notice given by plaintiff to defendant is a notice dated February 14, 1977 of a "breach of contract action by Anthony Pope, Jr. [plaintiff] against yourself and others.” Indeed, at or about that time plaintiff began an action against defendant and the corporation for a breach of contract. We cannot agree with the dissent’s interpretation of the complaint in that action as putting defendant Halloran on notice that plaintiff intended to hold him liable as a shareholder of the corporation rather than as a contracting party. Neither the notice of February 14, 1977 nor the earlier complaint is in any sense adequate as notice that plaintiff intended to hold defendant liable for the liability imposed by section 630 of the Business Corporation Law. The time to give such notice has long since expired. The defect is fatal. Concur—Fein, J. P., Silverman and Bloom, JJ.