Finando, Matter of

• Decision Date: 22 April 1996
• Citation: 641 N.Y.S.2d 384,226 A.D.2d 634
• Parties: In the Matter of Steven FINANDO, Respondent; Sunsource Health Products, Inc., etc., et al., Appellants; Tina Sohn, Additional Appellant.
• Court: New York Supreme Court — Appellate Division

Page 384

641 N.Y.S.2d 384

226 A.D.2d 634

In the Matter of Steven FINANDO, RespondentSunsource Health Products, Inc., etc., et al., AppellantsTina Sohn, AdditionalAppellant.

Supreme Court, Appellate Division Second Department.

April 22, 1996.

Rivkin, Radler & Kremer, Uniondale (Stephen J. Smirti, Jr., and Evan H. Krinick, of counsel), for appellants.

Salis & Lefari, New York City(Donald M. Lefari and Marc I. Salis, of counsel), for respondent.

Before BALLETTA, J.P., and SANTUCCI, KRAUSMAN and FLORIO, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to Business Corporation Law § 1104-a for judicial dissolution of a close corporation, Sunsource Health Products, Inc., Sunsource Corp., and Tina Sohn appeal from so much of (1) an order of the Supreme Court, Nassau County(O'Brien, J.), dated July 28, 1994, as determined to continue the proceeding in the absence of Tina Sohn, and (2) an order of the same court, dated January 13, 1995, as, upon reargument, determined that Tina Sohn was not a necessary party required to be joined in the proceeding pursuant to CPLR 1001, and adhered to the previous determination to continue the proceeding in her absence.

ORDERED that the appeal from the order dated July 28, 1994, is dismissed, as that portion of the order appealed from was superseded by the order dated January 13, 1995, made upon reargument; and it is further,

ORDERED that the order dated January 13, 1995, is affirmed insofar as appealed from; and it is further,

ORDERED that the petitioner is awarded one bill of costs.

The petitioner alleges that he is the owner of more than 20% of the outstanding shares of Sunsource Health Products, Inc.(hereinafter Sunsource), a domestic corporation.In July 1993, the petitioner commenced this proceeding to dissolve Sunsource pursuant to Business Corporation Law § 1104-a, which permits holders of more than 20% of the outstanding shares of a corporation to petition for involuntary dissolution on the ground, inter alia, that corporate assets are being looted, wasted, or diverted for noncorporate purposes by those in control of the corporation.In his original petition, the petitioner averred that he and Robert Sohn, who is the president of Sunsource, were the corporation's sole shareholders.However, Sohn maintains that his wife Tina Sohn is actually the true owner of the shares claimed by the petitioner.

After receiving notice of the proceeding in accordance with Business Corporation Law § 1106, Tina Sohn moved to dismiss the proceeding, contending that she was a necessary party to the court's resolution of the threshold issue of whether the petitioner actually owns at least 20% of the corporation's shares and is thus entitled to seek dissolution of Sunsource.Tina Sohn further contended that the petitioner could not proceed with his petition for dissolution becau...