Augstein v. Levey
| Decision Date | 07 May 1957 |
| Citation | 3 A.D.2d 595,162 N.Y.S.2d 269 |
| Parties | Otto AUGSTEIN, John A. Stephen and Hans L. Krafft, Plaintiffs-Appellants-Respondents, v. Arthur LEVEY, William Levy, Frank V. Quigley, Murray Katz, Myron M. Myers, Annette Hyams Klein, Defendants-Respondents, Skiatron Electronics and Television Corporation, Defendant-Appellant-Respondent, Skiatron TV Inc. and Matthew J. Fox, Defendants-Appellants, Scophony Corporation of America, Daniel Levy, Norman Bushan and Dorothy Hoitsma, Defendants. |
| Court | New York Supreme Court — Appellate Division |
Robert B. Block, New York City, of counsel (Nahum A. Bernstein and Frederick H. Block, New York City, with him on the brief; Silver & Bernstein, New York City) for plaintiffs-appellants-respondents.
James M. Landis, White Plains, of counsel (Norman Goodman, New York City, with him on the brief; Kurt Widder, New York City), for defendants-appellants Skiatron Electronics & Television Corp. and Arthur Levey, et al.
Herman L. Weisman, New York City, of counsel (Jack B. Levitt, New York City, with him on the brief; Amen, Gans, Weisman & Butler, New York City), for defendants-appellants Skiatron TV Inc. and Matthew J. Fox.
Selig Dresner, Hempstead, for defendant-respondent William Levy.
Before BOTEIN, J. P., and RABIN, FRANK, VALENTE and McNALLY, JJ.
These are three appeals from an order granting relief under rules 106 and 107 of the Rules of Civil Practice. The order appealed from was consequent on three motions made by various defendants. The motions under rule 107 of the Rules of Civil Practice are addressed to the first three causes of action, and the motions under rule 106 of the Rules of Civil Practice to the fourth and fifth causes of action.
The court below dismissed all claims embraced in the first cause of action as barred by the three-year limitation of subdivision 8 of section 48 and subdivision 7 of section 49 of the Civil Practice Act, applicable to derivative actions for waste or for an injury to property, or for an accounting in connection therewith. Plaintiffs challenge this ruling with regard to the 1951 transaction in which it is alleged that the defendant Arthur Levey acquired 625 shares of Scophony Corporation of America (hereinafter referred to as Scophony) stock out of 2,000 shares outstanding, mainly in exchange for assets of Scophony. The plaintiffs-appellants contend that since Levey is sued as the recipient of the stock, and, furthermore, since they seek its surrender and cancellation, the claim is governed by the six-year limitation of subdivision 8 of section 48 of the Civil Practice Act, rather than by the three-year limitation, which in terms applies to claims for waste and injury to property.
The plaintiffs-appellants do not otherwise contest the dismissal of the first cause of action which involves, in addition, a claim for like relief against Levey arising out of an alleged similar transaction in 1949 and alleged claims against former directors and officers for assisting and participating in both transactions. Plaintiffs have stipulated to withdraw their appeal with respect to the dismissal of the first cause of action against the individual defendants, other than Levey.
The complaint, in its prayer for relief, requires defendant Levey to account for all moneys and other things of value obtained by him in settling the alleged claims against Scophony, Ltd., and to surrender to Scophony, for cancellation, 625 shares of its Class A stock so acquired, held and purportedly owned by defendant Levey.
Giving the allegations of the first cause of action the inferences most favorable to the plaintiffs-appellants, which is required on a motion of this kind and character, it would appear that plaintiffs are attempting to follow the assets of Scophony into the hands of a fiduciary, that is, Levey, its president and director, and the person who it is claimed controlled it during the period involving the transactions complained of. In this posture of the case, it was error to hold, as a matter of law, that the three-year statute applied to the 1951 transaction aforesaid. Coane v. American Distilling Co., Inc., 298 N.Y. 197, 206, 207, 81 N.E.2d 87, 90.
The second cause of action is directed against the defendants Levey, Skiatron Electronics and Television Corporation (hereinafter referred to as Skiatron), Skiatron TV Inc., and Fox. It alleges the illegal transfer of certain patents during January and February, 1949, to Skiatron, as part of a scheme conceived and executed by Levey for the benefit of himself and the remaining defendants.
The third cause of action is for the diversion of corporate opportunities of Scophony and is directed against Levey, Skiatron, Skiatron TV Inc., and Fox.
With reference to the second cause of action, the vital allegations relate to the transfer of Scophony's patents to Skiatron without the knowledge or consent of the plaintiffs. The transactions occurred in 1949 and plaintiffs admit that a cause of action based exclusively thereon is barred by the statute of limitations. Consequently, to avoid the bar, plaintiffs allege conduct by Levey shortly after the conclusion of the above transactions and again in 1952, which they claim constitutes fraud of such a character as to estop Levey to claim the benefit of the statute of limitations. The allegations of fraudulent and deceptive statements by Levey claimed to estop him from pleading the statute of limitations are (1) that the transfer of the patents was subject to substantial payments to Scophony, which statement plaintiffs say was false and led them to abandon the complaint before the Securities and Exchange Commission filed in 1949; and (2) in 1952, in the course of an action by plaintiffs against Scophony for the appointment of a receiver, Levey filed affidavits in that cause falsely asserting that Scophony had valuable...
To continue reading
Request your trial
-
Saylor v. Lindsley
...officers, directors or shareholders of a corporation to a period of six years.11 See CPA § 48(8). See also, Augstein v. Levey, 3 A.D.2d 595, 162 N.Y.S.2d 269 (1st Dept. 1957), aff'd 4 N.Y.2d 791, 173 N.Y.S.2d 27, 149 N.E.2d 528 (1958). However, the statute begins to run from the time of the......
-
Barrett v. Hoffman
...sufficient to place them "under a duty to make inquiry and ascertain for themselves all the relevant facts." Augstein v. Levey, 3 A.D.2d 595, 162 N.Y.S.2d 269 (1957), aff'd, 4 N.Y.2d 791, 173 N.Y.S.2d 27, 149 N.E.2d 528 (1958); Renz v. Beeman, 589 F.2d 735, 751 (2d Cir. 1978), cert. denied,......
-
Renz v. Beeman
...themselves all the relevant facts," courts should "not view with favor a claim of estoppel grounded in fraud." Augstein v. Levey, 3 A.D.2d 595, 598, 162 N.Y.S.2d 269, 273 (1957), Affirmed, 4 N.Y.2d 791, 173 N.Y.S.2d 27, 149 N.E.2d 528 (1958). All that is needed to commence the running of th......
-
Mittendorf v. JR Williston & Beane Incorporated
...see Sielcken-Schwarz v. American Factors Ltd., 265 N.Y. 239, 245-246, 192 N.E.2d 307, 310 (1934); Augstein v. Levey, 3 App.Div. 2d 595, 598, 162 N.Y.S.2d 269, 273 (1st Dep't. 1957), aff'd mem., 4 N.Y.2d 791, 173 N.Y.S.2d 27, 149 N.E.2d 528 (1958); Ectore Realty Co. v. Manufacturers Trust Co......
-
RETRIBUTION AGAINST CATHOLIC DIOCESES BY REVIVAL: THE EVOLUTION AND LEGACY OF THE NEW YORK CHILD VICTIMS ACT.
...503 N.Y.S.2d 836, 837 (App. Div. 1986); Ramsay v. Mary Imogene Bassett Hosp., 495 N.Y.S.2d 282, 285 (App. Div. 1985); Augstein v. Levey, 162 N.Y.S.2d 269, 273 (App. Div. (134) See Doe v. Holy See, 793 N.Y.S.2d 565, 569 (App. Div. 2005) (citing Golden v. Scalise, 451 N.Y.S.2d 215, 216 (App. ......