Pantel v. Becker

• Citation: 89 Misc.2d 239,391 N.Y.S.2d 325
• Parties: , 21 UCC Rep.Serv. 274 Russell PANTEL, Plaintiff, v. Martin S. BECKER et al., Defendants.
• Decision Date: 14 January 1977
• Court: New York Supreme Court

Page 325

391 N.Y.S.2d 325

89 Misc.2d 239, 21 UCC Rep.Serv. 274

Russell PANTEL, Plaintiff, v. Martin S. BECKER et al., Defendants.

Supreme Court, Special Term, Sullivan County, Part I.

Jan. 14, 1977.

Aks & Tieger, Monticello (Jacob Aks, Monticello, of counsel), for plaintiff.

Cohen & Silverstein, Monticello (Carl J. Silverstein, Monticello, of counsel), for Becker and High Green Corp.

Samuel Kalmanash, New York City, for Cowan.

GEORGE L. COBB, Justice.

Defendants Becker and High Green Corporation move for summary judgment dismissing the complaint herein and defendant Cowan cross-moves for similar relief as well as for summary judgment upon his cross claim against defendant Becker.

The complaint charges that the plaintiff owns 40% Of the stock of the defendant corporation and in the first and second causes of action in the complaint, alleges an agreement among the stockholders of the defendant corporation which, in effect, conferred upon each of them first refusal rights if any other stockholder wished to sell his stock to the extent that a continuing stockholder might purchase from such other such number of shares as would bring the continuing stockholder's total holding to 50% Of the total number of outstanding shares. In the third cause of action herein, plaintiff charges that a certain lease, executed by the defendant corporation as landlord to the defendant Cowan as tenant, was not properly authorized and here seeks a declaration that said lease is null and void.

Section 8--319 of the Uniform Commercial Code, to the extent here applicable, says, in effect, that a contract for the sale of securities is not enforceable unless it be contained in a writing signed by the party to be charged which indicates that a contract has been made for the sale of a stated quantity of a described security at a defined or stated price. It is conceded by all parties that the contract pleaded by the plaintiff was oral, and, accordingly, the applicability of the last cited statute to this case would depend upon whether or not the stock here involved is a security, as such is defined in section 8--102 (subd. (1), par. (a)) of the Uniform Commercial Code. Before resolving this substantive matter, however, the court will dispose of a procedural matter.

While the answers herein allege that the subject agreement was not in writing and, therefore, is unenforceable under the Statute of Frauds, the bar of section 8--319 of the Uniform Commercial Code has not been specifically pleaded. While, as a general matter, summary judgment may not be had upon an unpleaded defense (Furlo v. Cheek, 20 A.D.2d 939, 940, 248 N.Y.S.2d 947, 949), where, as here, the essential facts are undisputed and all parties have had an adequate opportunity to brief and argue the legal issue involved, the court should consider the applicability of the last cited statute upon this motion, even though such was not specifically pleaded (see Practice Commentaries, Siegel, McKinney's Cons.Laws of N.Y., Book 7B, CPLR 3212, C3212:10, C3212:11).

Said section 8--102 (subd. (1), par. (a)) of the Uniform Commercial Code says, among other things, that a security is an instrument 'of a type commonly dealt in upon securities exchanges or markets or commonly recognized in any area in which it is issued or dealt in as a medium for investment * * *'. It is apparent that the instruments here in...