Inzer v. W. Brighton Fire Dep't, Inc.

• Decision Date: 28 June 2019
• Docket Number: 285,CA 18–00329
• Citation: 173 A.D.3d 1826,105 N.Y.S.3d 655
• Parties: In the Matter of Pat A. INZER, Bruce Hall, Dean C. Marshall, III, Kevin Hall, James Quinn, for Judicial Dissolution of West Brighton Fire Department, Inc., Pursuant to Not–for–Profit Corporation Law § 1102, and Town of Brighton, Petitioners–Respondents, v. WEST BRIGHTON FIRE DEPARTMENT, INC., Respondent–Appellant, and Eric T. Schneiderman, as Attorney General of the State of New York, Respondent.
• Court: New York Supreme Court — Appellate Division

173 A.D.3d 1826
105 N.Y.S.3d 655

In the Matter of Pat A. INZER, Bruce Hall, Dean C. Marshall, III, Kevin Hall, James Quinn, for Judicial Dissolution of West Brighton Fire Department, Inc., Pursuant to Not–for–Profit Corporation Law § 1102, and Town of Brighton, Petitioners–Respondents,
v.
WEST BRIGHTON FIRE DEPARTMENT, INC., Respondent–Appellant,
and
Eric T. Schneiderman, as Attorney General of the State of New York, Respondent.

285
CA 18–00329

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: June 28, 2019

PINSKY LAW GROUP, PLLC, SYRACUSE (DAVID B. GARWOOD OF COUNSEL), FOR RESPONDENT–APPELLANT.

HANNIGAN LAW FIRM PLLC, DELMAR (TERENCE S. HANNIGAN OF COUNSEL), FOR PETITIONER–RESPONDENT TOWN OF BRIGHTON.

LAW OFFICES OF MARK C. BUTLER, WILLIAMSVILLE (MARK C. BUTLER OF COUNSEL), FOR PETITIONERS–RESPONDENTS PAT A. INZER, BRUCE HALL, DEAN C. MARSHALL, III, KEVIN HALL, JAMES QUINN, FOR JUDICIAL DISSOLUTION OF WEST BRIGHTON FIRE DEPARTMENT, INC., PURSUANT TO NOT–FOR–PROFIT CORPORATION LAW § 1102.

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND TROUTMAN, JJ.

MEMORANDUM AND ORDER

173 A.D.3d 1826

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Respondent West Brighton Fire Department, Inc. (WBFD) appeals from an order that granted pursuant to N–PCL 1102(a)(2)(E) a petition seeking judicial dissolution of WBFD. We affirm.

WBFD contends that, inasmuch as the petition was not filed by the requisite 10% of WBFD's members (see N–PCL 1102[a][2] ), Supreme Court erred in denying WBFD's motion to dismiss the petition. We reject that contention. The court granted an amendment of the petition to add two additional members of WBFD as petitioners and, pursuant to N–PCL 1105, such an amendment is deemed nunc pro tunc, i.e., as if the petition were originally filed as amended (see generally La Sorsa v. Algen Press Corp. , 105 A.D.2d 771, 772, 481 N.Y.S.2d 716 [2d Dept. 1984] ). Following the trial, WBFD contended for the first time that the court had lacked the authority to add the two additional members as petitioners because there was never any formal motion to do so and that courts cannot sua sponte add petitioners. Even assuming, arguendo, that WBFD's contention is properly before this Court, we conclude that it lacks merit.

105 N.Y.S.3d 658

It is well settled that oral motions, including oral motions to add petitioners, are not prohibited (see Matter of Kirsch v. Board of Educ. of Williamsville Cent. Sch. Dist. , 152 A.D.3d 1218, 1219, 57 N.Y.S.3d 870 [4th Dept. 2017], lv denied 31 N.Y.3d 904, 78 N.Y.S.3d 710, 103 N.E.3d 781 [2018] ; see generally Matter of Shanty Hollow Corp. v. Poladian , 23 A.D.2d 132, 133–134, 259 N.Y.S.2d 541 [3d Dept. 1965], affd 17 N.Y.2d 536, 267 N.Y.S.2d 912, 215 N.E.2d 168 [1966] ). Here, petitioners

173 A.D.3d 1827

"present[ed] affidavits or other competent evidence in support of [their]" request to add two additional members of WBFD as petitioners ( ...