• A Few Dissolution Case Tidbits
  • September 3, 2010 | Author: Peter A. Mahler
  • Law Firm: Farrell Fritz, P.C. - New York Office
  • This being the last, lazy week of August, I thought I'd offer something lighter than my usual fare for those sitting beachside with one eye on the kids and the other on their iPad.  So without further ado, here are some short summaries of miscellaneous cases of interest involving shareholder disputes:

    Court grants interim injunction restraining directors of Delaware corporation from committing acts that constitute grounds for dissolution under BCL 1104-a.  In Ziglin v. Hommel, 2009 NY Slip Op 32636(U) (Sup Ct NY County Oct. 9, 2009), Manhattan Supreme Court Justice Debra A. James granted an unusual preliminary injunction in a dispute between two shareholders of a New York based Delaware corporation, requiring that the directors "not commit acts that constitute grounds for dissolution contained in BCL 1104-a(a)(1) and (2) , and that corporate records be made available pursuant to BCL 1104-a(c)."  Why unusual?  (a) The plaintiff filed a summons with notice, i.e., did not file a complaint.  (b) The notice did not include a request for dissolution. (c) Case precedent seems to foreclose dissolution of a Delaware corporation by a New York court. (d) How does a director comply with an injunction against "oppression" of a minority shareholder?

    Court denies dissolution petition but authorizes petitioner to seek fair value award under BCL 910 arising from sale of business assets.   In Matter of Banani (New Millenium Pawnbrokers, Inc.), Short Form Order, Index No. 007728/10 (Sup Ct Nassau County Aug. 16, 2010), Nassau County Commercial Division Justice Stephen A. Bucaria ruled that the administrator of a deceased shareholder's estate failed to establish grounds for judicial dissolution under BCL 1104-a but granted her leave to serve an amended petition seeking payment of fair value for the shares under BCL 910.  The latter statute authorizes a shareholder to initiate a dissenting shareholder appraisal proceeding upon the happening of certain events including, as occurred in Banani, the sale of all of the corporation's assets.

    Court rules that shareholder of Corporation A cannot utilize de facto merger doctrine to seek dissolution of Corporation B.   In Matter of Akcan (Vita Ristorante 58, Inc.), 2010 NY Slip Op 32195(U) (Sup Ct NY County Aug. 16, 2010), the petitioner sought to dissolve a corporation of which, admittedly, he was not a shareholder on the theory that it had entered into a de facto merger with another corporation in which he held a 25% stock interest.  Manhattan Supreme Court Justice Jane S. Solomon dismissed the petition, noting that the petitioner cited "no authority that would allow a court to utilize the doctrine of de facto merger to shift his shareholder interest in one corporation to another corporation for the purpose of forced dissolution of the new corporation."