Matter of Trio Asbestos Removal Corp. v. Marinelli

• Decision Date: 06 February 2007
• Docket Number: 2005-10087.
• Citation: 829 N.Y.S.2d 594,37 A.D.3d 475,2007 NY Slip Op 01127
• Parties: In the Matter of TRIO ASBESTOS REMOVAL CORP., Respondent, v. NICHOLAS MARINELLI, Appellant.
• Court: New York Supreme Court — Appellate Division

37 A.D.3d 475

829 N.Y.S.2d 594

2007 NY Slip Op 01127

In the Matter of TRIO ASBESTOS REMOVAL CORP., Respondent, v. NICHOLAS MARINELLI, Appellant.

2005-10087.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided February 6, 2007.

In a proceeding pursuant to CPLR 7601 to enforce a valuation provision of the parties' shareholders agreement, the appeal is from an order of the Supreme Court, Queens County (Golia, J.), dated February 23, 2005, which, inter alia, granted the petitioner's motion to confirm a valuation of Nicholas Marinelli's shares in the petitioner and for specific performance of a contract for the sale of Nicholas Marinelli's shares for the amount set forth in the valuation, and denied Nicholas Marinelli's cross motion, inter alia, pursuant to CPLR 5015 to vacate an order of the same court (Golar, J.), dated March 30, 2004, inter alia, directing specific performance of the contract for the sale to the petitioner of Nicholas Marinelli's shares in the petitioner based on a valuation of the shares pursuant to section 3.4 (d) of the parties' shareholders agreement, and to amend the 2003 form K-1 issued to him or, in the alternative, for access to the petitioner's books and records.

Ordered that the order dated February 23, 2005 is modified, on the law, by deleting the provision thereof granting the petitioner's motion to confirm the valuation and substituting therefor a provision denying the motion; as so modified, the order is affirmed, without costs or disbursements.

Trio Asbestos Removal Corp. (hereinafter the petitioner) brought an action for specific performance of an agreement between it and the appellant, Nicholas Marinelli, for the sale to the petitioner of Marinelli's shares in the petitioner. The Supreme Court, by order dated March 30, 2004, inter alia, directed specific performance of the agreement, with Marinelli's shares to be valued as of August 1, 2003, by a method set forth in the parties' shareholders agreement. Pursuant to section 3.4 (d) of the shareholders agreement, valuation of shares in the petitioner was to be determined "[b]y the accountants servicing the Corporation using normal and usual accounting practices."

Subsequently, the petitioner moved to confirm a valuation of Marinelli's shares and for specific performance of the parties' agreement for the sale of the shares at the price determined by the valuation. The valuation the petitioner sought to confirm had been issued...