Carroll v. Seacroft Plaza, Ltd.

• Decision Date: 20 June 1988
• Citation: 141 A.D.2d 724,529 N.Y.S.2d 588
• Parties: In the Matter of William CARROLL, Respondent, v. SEACROFT PLAZA, LTD., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 588

529 N.Y.S.2d 588

141 A.D.2d 724

In the Matter of William CARROLL, Respondent, v.SEACROFT PLAZA, LTD., Appellant.

Supreme Court, Appellate Division Second Department.

June 20, 1988.

Twomey, Latham, Shea & Kelley, Riverhead (Maureen T. Liccione, of counsel), for appellant.

McNulty, DiPietro & Spiess, Riverhead (James Spiess, of counsel), for respondent.

Before MANGANO, J.P., and BRACKEN, WEINSTEIN and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

In an action pursuant to Business Corporation Law § 623 to determine the fair value of the petitioner's shares in Seacroft Plaza, Ltd., the appeal is from an order of the Supreme Court, Suffolk County(Lama, J.), dated February 3, 1987, which denied the appellant's motion pursuant to CPLR 3211(a)(7)andBusiness Corporation Law §§ 623and910 to dismiss the petition for failure to state a cause of action.

ORDERED that the order is affirmed, with costs.

The Supreme Court properly denied the appellant's motion to dismiss.On a motion to dismiss for failure to state a cause of action each fact alleged must be assumed to be true and the petition or complaint liberally construed in the plaintiff's favor ( see, Barr v. Wackman, 36 N.Y.2d 371, 375, 368 N.Y.S.2d 497, 329 N.E.2d 180;MacKay v. Pierce, 86 A.D.2d 655, 446 N.Y.S.2d 403).In the instant case, as the Supreme Court noted, the principal facts are uncontested.

The record reveals that the petitioner, Richard J. Cron, and Joseph E. Nolan were equal shareholders in a corporation which was formed to acquire and develop a 7.1-acre parcel of land located in Southold.Each shareholder contributed $12,503.14 toward the purchase price of the property.Subsequently the petitioner objected to the amount of certain development fees the corporation was paying and refused to make any further contributions.

Mr. Cron and Mr. Nolan increased their contributions to compensate for the shortfall created by the petitioner's refusal to pay, but eventually they could not afford to continue.Attempts to refinance the property's mortgage were unsuccessful, and the other shareholders decided to recapitalize the corporation.

A special shareholders' meeting was scheduled for July 29, 1985.The notice of the meeting which was sent to the petitioner contained three proposals.The first was to increase the aggregate number of shares from 200 to 1,000.This was done so there would be enough shares to reflect the contributions Mr. Cron and Mr. Nolan had made to the corporation to make up for the petitioner's deficit.The second was to restrict the sale of stock, and the third was to amend the by-laws to permit ratification by a two-thirds vote of the shareholders of the acts of the Board of Directors and to sell the...