Re/Max of N.Y., Inc. v. Weber

• Decision Date: 20 November 2019
• Docket Number: Index No. 600848/16,2017–00226
• Parties: RE/MAX OF NEW YORK, INC., Plaintiff-Appellant-Respondent, v. Henry WEBER, Defendant Third-Party Plaintiff-Respondent-Appellant; Pierre Titley, et al., Third-Party Defendants-Appellants-Respondents.
• Court: New York Supreme Court — Appellate Division

177 A.D.3d 910

112 N.Y.S.3d 769

RE/MAX OF NEW YORK, INC., Plaintiff-Appellant-Respondent,

v. Henry WEBER, Defendant Third-Party Plaintiff-Respondent-Appellant;Pierre Titley, et al., Third-Party Defendants-Appellants-Respondents.

2017–00226

Index No. 600848/16

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

Argued - March 29, 2019

November 20, 2019

Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone, LLP, Lake Success, N.Y. (Matthew F. Didora and Laura Mulholland of counsel), for plaintiff-appellant-respondent and third-party defendants-appellants-respondents.

Henry Weber, Jensen Beach, Florida, defendant third-party plaintiff-respondent-appellant pro se.

ALAN D. SCHEINKMAN, P.J., JOSEPH J. MALTESE, FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In an action for a judgment declaring that the defendant is not a shareholder of the plaintiff, the plaintiff and the third-party defendants appeal, and the defendant cross-appeals, from an order of the Supreme Court, Nassau County (Stephen A. Bucaria, J.), entered December 6, 2016. The order, insofar as appealed from, upon reargument, (1) adhered to a determination in an order of the same court entered August 25, 2016, denying that branch of the prior motion of the plaintiff and the third-party defendants which was for summary judgment declaring that the defendant is not a shareholder of the plaintiff, (2), upon searching the record, awarded the defendant summary judgment declaring that he is a shareholder of the plaintiff, that he holds a total of 15 shares, and that he is entitled to the fair value of his shares, and (3), upon, in effect, vacating a determination in the order entered August 25, 2016, denying that branch of the prior motion of the plaintiff and the third-party defendants which was for summary judgment dismissing the defendant's first counterclaim, and thereupon, granting that branch of the motion, granted the defendant leave to replead that counterclaim as a derivative counterclaim. The order, insofar as cross-appealed from, upon reargument, upon searching the record, awarded the defendant summary judgment declaring that he holds a total of only 15 shares of the plaintiff, and, upon determining that he is entitled to the fair value of his shares taking into account the "economic impact" of the sale of the plaintiff to its parent company, failed to define the term "economic impact."

ORDERED that the appeal by the third-party defendants is dismissed as abandoned; and it is further,

ORDERED that the appeal by the plaintiff from so much of the order entered December 6, 2016, as, upon reargument, upon searching the record, awarded the defendant summary judgment declaring that he holds a total of 15 shares of the plaintiff is dismissed as academic; and it is further,

ORDERED that the appeal by the plaintiff from so much of the order entered December 6, 2016, as, upon reargument, upon, in effect, vacating the determination in the order entered August 25, 2016, denying that branch of the motion of the plaintiff and the third-party defendants which was for summary judgment dismissing the defendant's first counterclaim, and thereupon, granting that branch of the motion, granted the defendant leave to replead that counterclaim as a derivative counterclaim is dismissed as academic; and it is further, ORDERED that the cross appeal by the defendant is dismissed as academic; and it is further,

ORDERED that the order entered December 6, 2016, is modified, on the law, by deleting the provision thereof, upon reargument, upon searching the record, awarding the defendant summary judgment declaring that he is a shareholder of the plaintiff and is entitled to the fair value of his shares; as so modified, the order entered December 6, 2016, is affirmed insofar as reviewed on the appeal by the plaintiff; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff, payable by the defendant.

The plaintiff, Re/Max of New York, Inc. (hereinafter RMNY), commenced this action for a judgment declaring that the defendant, Henry Weber, is not a shareholder of the company. Weber asserted counterclaims to recover damages for: (1) the depreciation in the value of RMNY's stock; (2) wrongful termination; and (3) violation of the Sarbanes–Oxley Act of 2002. Weber also commenced a third-party action against Pierre Titley, Ginette Lambert, and Can–Am Holdings, Inc. (hereinafter Can–Am). Thereafter, RMNY and the third-party defendants jointly moved for summary judgment declaring that Weber is not a shareholder of RMNY, and for summary judgment dismissing the counterclaims and the third-party complaint. By order entered August 25, 2016, the Supreme Court denied that branch of the motion which was for summary judgment declaring that Weber is not a shareholder of RMNY, concluding that, although the movants demonstrated, prima facie, that Weber was not a shareholder, Weber raised a triable issue of fact in opposition. The court also denied those branches of the motion which were for summary judgment dismissing the first and second counterclaims with leave to renew those branches of the motion at the conclusion of discovery, and granted that branch of the motion which was for summary judgment dismissing the third counterclaim. The court denied that branch of the motion which was for summary judgment dismissing the third-party complaint.

Thereafter, RMNY and the third-party defendants moved for leave to renew and reargue those branches of their prior motion which were for summary judgment on the complaint, and for summary judgment dismissing the first and second counterclaims and the third-party complaint. By order entered December 6, 2016, the Supreme Court granted leave to reargue. Upon reargument, the court adhered to its prior determination denying that branch of the motion which was for summary judgment declaring that Weber is not a shareholder of RMNY, and, upon searching the record, awarded Weber summary judgment declaring that he is a shareholder of RMNY, that he holds a total of 15 shares, and that he is entitled to the fair value of his shares, "taking into account the subsequent ‘economic impact’ " of the sale of RMNY to its parent company. The court also, upon reargument, in effect, vacated the determination in the order entered August 25, 2016, denying that branch of the motion of RMNY and the third-party defendants which was for summary judgment dismissing Weber's first counterclaim, and thereupon, granted that branch of the motion and granted Weber leave to replead that counterclaim as a derivative counterclaim.

The appeal by the third-party defendants must be dismissed as abandoned, as RMNY and the third-party defendants do not seek any relief with respect to the third-party defendants in their brief. RMNY's appeal from the portion of the order entered December 6, 2016, which, upon reargument, and upon, in effect, vacating the determination in the prior order denying that branch of the motion of RMNY and the third-party defendants which was for summary judgment dismissing the first counterclaim, and thereupon, granting that branch of the motion, granted Weber leave to replead that counterclaim as a derivative counterclaim must be dismissed. The appeal from that portion of the order has been rendered academic by an order of the same court entered June 8, 2017, which, sua sponte, amended that portion of the order to deny Weber leave to amend his answer to assert a derivative counterclaim (see Re/Max of New York, Inc. v. Weber, 177 A.D.3d 915, 110 N.Y.S.3d 559, 2019 WL 6139286 [Appellate...