Posner v. Post Road Development Equity, L. L. C.

253 A.D.2d 866, 678 N.Y.S.2d 350, 1998 N.Y. App. Div. LEXIS 9867

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 28, 1998
• Status: Published

Opinions

In an action, inter alia, pursuant to Business Corporation Law § 909 to set aside a conveyance of real property, the plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Dutchess County (Jiudice, J.), dated July 24, 1997, which, inter alia, granted the defendants’ motion for summary judgment, denied his motion for reargument of the defendants’ prior motion to cancel a notice of pendency, and dismissed the complaint.

Ordered that the appeal from so much of the order and judgment as denied reargument is dismissed, as no appeal lies from an order denying a motion for reargument; and it is further,

Ordered that the order and judgment is affirmed insofar as reviewed; and it is further,

Ordered that the defendants are awarded one bill of costs.

Based upon our review of the record, we conclude that the Supreme Court properly granted summary judgment to the defendants and dismissed the complaint. The conveyance that the plaintiff seeks to set aside pursuant to Business Corporation Law § 909 (a) did not require shareholder approval since it was made “in the usual or regular course of business actually conducted by [the] corporation”, and did not constitute a transfer of “all or substantially all” of the corporation’s assets (see, Soho Gold v 33 Rector St., 227 AD2d 314). The corporation’s certificate of incorporation authorized it, inter alia, to sell, lease, and convey real estate, and the conveyance did not result in a dissolution or a liquidation of the corporate assets (see, Matter of Roehner v Gracie Manor, 6 NY2d 280; Dukas v Davis Aircraft Prods. Co., 131 AD2d 720), since the corporation retained a valuable leasehold interest in a second parcel of land of comparable size and location.

The appeal from the order and judgment (one paper) dated July 24, 1997, does not bring up for review so much of an intermediate order dated January 29, 1997, as directed a hearing in aid of the disposition of the defendants’ motion to impose sanctions. That provision of the intermediate order does not necessarily affect the final judgment (see, CPLR 5501 [a] [1]). Although no separate appeal was taken from the order dated January 29, 1997, we note that an order which directs a hearing on a motion does not affect a substantial right and is therefore not appealable as of right (see, CPLR 5701 [a] [2] [v]; Palma v Palma, 101 AD2d 812).

In view of our determination that the complaint was properly dismissed, the propriety of that portion of the intermediate order dated January 29, 1997, which cancelled the notice of pendency is academic (see, L & L Excavating Corp. v Abcon Assoc., 191 AD2d 539). O’Brien, J. P., Santucci and Joy, JJ., concur.