Gross v. Price

Decision Date13 October 1955
Citation148 N.Y.S.2d 375,208 Misc. 899
PartiesIrving GROSS, Individually, and as a Minority Stockholder, on Behalf of East Coast Lumber Terminal, Inc., and on Behalf of the Directors and Stockholders of Said Corporation, and of All Stockholders Thereof Similarly Situated, Plaintiff, v. Virgil M. PRICE, Individually, and as President, Director, and Stockholder of East Coast Lumber Terminal, Inc., and of Broad Hollow Estates, Inc., Alice Price, Carol Craighead et all, Defendants.
CourtNew York Supreme Court

Arthur Miller, New York City, for plaintiff. Sprague & Stern, Mineola, of counsel. Bennett & Kaye, Rockville Centre, for defendants Virgil M. Price and East Coast Lumber Terminal, Inc. Aranow, Brodsky, Bohlinger, Einhorn & Dann, New York City, of counsel.

HOOLEY, Official Referee.

This is a motion made by the plaintiff to reargue the motion heretofore made by defendants Virgil M. Price and East Coast Lumber Terminal, Inc. for an order vacating or modifying the plaintiff's demand for a bill of particulars dated July 1, 1955.

By an order of this Court dated the 15th day of September, 1955, the motion to reargue was granted, and upon such reargument the matter was referred to the undersigned Official Referee to hear and determine at this time the said defendants' motion to vacate or modify plaintiff's demand for a bill of particulars.

On the 8th day of August, 1955, an order was made by this Court granting an application made by the defendants Virgil M. Price and East Coast Lumber Terminal, Inc. to vacate plaintiff's demand for a bill of particulars dated July 1, 1955, of affirmative defenses and counterclaims contained in the answer of said defendants. Defendants' notice of motion was dated July 8, 1955, and was returnable on July 27, 1955.

The grounds upon which a reargument and a redetermination are sought are that the original decision was based upon a misconception of both the law and the facts.

The opinion of Mr. Justice Hogan, dated August 8, 1955, upon the argument of the original motion to vacate the plaintiff's demand for a bill of particulars read in part as follows:

'In view of the fact that the trial has actually commenced and no explanation has been offered by the plaintiff to justify a departure from the usual rule that a bill of particulars should be sought prior to trial, the defendants' motion is granted to vacate the demand in its entirety.'

It is true that the trial of this action on a prior set of pleadings actually did commence before the undersigned Official Referee on or about the 23rd day of June, 1954. Prior thereto two out of the four causes of action set forth in the complaint had been dismissed. Those causes of action were for dissolution of the defendant corporations. The two surviving causes of action were for an accounting and for injunctive relief by minority stockholders against the officers and directors of the defendant corporations and against a faction of stockholders alleged to be a dominant faction.

The order which had previously been made dismissing two out of the four causes of action on the pleadings was not made by the Official Referee, but at Special Term. On appeal, the Special Term decision was modified by the Appellate Division, 284 App.Div. 964, 134 N.Y.S.2d 649, granting leave to plaintiff to replead the aforesaid dismissed causes of action.

Thereafter, a new complaint was served which the plaintiff claims was amended in accordance with the explicit directions of the Appellate Division.

Again, by an order of this Court made at Special Term, the repleaded causes of action were dismissed. From said last-mentioned order an appeal is now pending in the Appellate Division of the Supreme Court and no decision has been rendered upon...

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