Vierling v. West Chemical Products, Inc.

143 A.D.2d 829, 533 N.Y.S.2d 328, 1988 N.Y. App. Div. LEXIS 10169

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 17, 1988
• Status: Published

Opinion

In an action, inter alia, to rescind a merger of two corporations, the plaintiff appeals from a judgment of the Supreme Court, Queens County (Joy, J.), entered May 6, 1987, which, upon granting the defendants’ motion for summary judgment, dismissed the complaint.

Ordered that the judgment is affirmed, with one bill of costs.

To succeed on a motion for summary judgment, the proponent must establish the cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment in his favor. To defeat the motion, the adverse party must show facts sufficient to require a trial of any issue of fact other than an issue as to the amount or the extent of the damages (CPLR 3212).

We find that by tendering his shares for the merger consideration, the plaintiff acquiesced in the transaction and is now barred from attacking it (see, Anderson v International Mins. & Chem. Corp., 295 NY 343; Sandfield v Goldstein, 33 AD2d 376, affd 28 NY2d 794). We agree with the Supreme Court that the plaintiff failed to carry his burden of showing any triable issue of fact. Thompson, J. P., Brown, Rubin and Eiber, JJ., concur.