Ming Ng v. Tow
| Decision Date | 19 April 1999 |
| Citation | 688 N.Y.S.2d 647,260 A.D.2d 574 |
| Parties | WAI MING NG, Respondent,<BR>v.<BR>CONNIE TOW et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Joy, J. P., Krausman, Florio and Luciano, JJ., concur.
Ordered that the judgment is reversed insofar as appealed from, on the law, with costs, and the matter is remitted to the Supreme Court, Nassau County, for a new trial on the issue of damages only.
Upon our review of the record, we find that there was sufficient evidence to support the court's determination that the plaintiff was a 25% equity shareholder in the defendant corporation, Fifteen Ave. Poultry, Inc. (hereinafter Poultry, Inc.). However, due to a number of other errors, there must be a new trial on damages.
At the outset, it should be noted that the trial court based its valuation of Poultry, Inc., on the testimony of the plaintiff's expert witness, largely because, in the court's own words, that testimony was not "controverted in any manner, shape or form". However, the testimony was uncontroverted because the court improperly denied the defendants' request for a short adjournment so that the accountant for Poultry, Inc., could rebut the valuation testimony of the plaintiff's expert. As this Court stated in Balogh v H.R.B. Caterers (88 AD2d 136, 141), "[i]t is an abuse of discretion to deny a continuance where the application complies with every requirement of the law and is not made merely for delay, where the evidence is material and where the need for a continuance does not result from the failure to exercise due diligence". In this case, it appears that the defendants' attorney made a good faith and diligent effort to produce the accountant, whose testimony was material and relevant, and an adjournment for a few days in this nonjury trial was not likely to cause any prejudice to the plaintiff.
Furthermore, the flaws in the valuation analysis performed by the plaintiff's expert are obvious. She candidly admitted that her valuation was based solely on earnings and she did not consider any of the following factors, among others, which might be relevant to establish the true value of Poultry, Inc.: (1) the value of the license, (2) the terms of the lease, including the expiration date, (3) the corporation's tangible assets, including inventory and equipment, (4) the corporation's intangible assets, including customer lists and good will, (5) the corporation's expenses and outstanding debts; and (6) the value of comparable businesses.
Moreover, the court's damage award...
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