205 W. 19th St. Corp. v. Plymouth Mgmt. Group, Inc.

• Decision Date: 15 June 2010
• Parties: 205 W. 19TH ST. CORP., Plaintiff-Respondent, v. PLYMOUTH MANAGEMENT GROUP, INC., Defendant-Respondent, Laura Mercier, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

902 N.Y.S.2d 345 74 A.D.3d 564 205 W. 19TH ST. CORP., Plaintiff-Respondent, v. PLYMOUTH MANAGEMENT GROUP, INC., Defendant-Respondent, Laura Mercier, Defendant-Appellant. Supreme Court, Appellate Division, First Department, New York. June 15, 2010.

Ganfer & Shore, LLP, New York (Steven J. Shore of counsel), for appellant.

Ruta & Soulios LLP, New York (Joseph A. Ruta of counsel), for 205 W. 19th St. Corp., respondent.

D'Amato & Lynch, LLP, New York (Meleena M. Bowers of counsel), for Plymouth Management Group, Inc., respondent.

Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered February 24, 2010, which, insofar as appealed from as limited by the briefs, denied defendant Laura Mercier's motion for summary judgment dismissing the third cause of action for breach of contract and the sixth cause of action for legal fees, unanimously affirmed, with costs.

The court properly found that, while Mercier did not demonstrate that a vote taken at a special shareholders' meeting, which resulted in the passage of a resolution calling for a transfer tax, was invalid or improper, questions of fact exist in this regard, including those involving witness credibility ( see e.g. Welch v. Riverbay Corp., 273 A.D.2d 66, 709 N.Y.S.2d 58 [2000] ). Furthermore, material issues of fact must be resolved before any determination can be made regarding Mercier's claims based on waiver and estoppel ( see Fundamental Portfolio Advisors, Inc. v. Tocqueville Asset Mgt., L.P., 7 N.Y.3d 96, 105-106, 817 N.Y.S.2d 606, 850 N.E.2d 653 [2006] ). In view of the foregoing, the court properly denied Mercier's request to dismiss the cause of action seeking legal fees.

ANDRIAS, J.P., SAXE, SWEENY, NARDELLI, CATTERSON, JJ., concur.