Teperman v. Atcos Baths, Inc.
| Decision Date | 28 August 1956 |
| Citation | 158 N.Y.S.2d 391,4 Misc.2d 738 |
| Parties | Matter of the Petition of Edward C. TEPERMAN, Petitioner, v. ATCOS BATHS, Inc., Howard C. Amron, Albert M. Bendes and Zarah Williamson, Respondents, for an order annulling the action taken at an alleged meeting of Atcos Baths, Inc. held on |
| Court | New York Supreme Court |
Isaac Anolic, New York City, for petitioner.
Bendes, Stark & Amron, New York City, Zarah Williamson, Kenneth Stark, New York City, of counsel, for respondents.
Application for an order annulling the action of the corporate respondent whereby petitioner was removed as director and one of the individual respondents was elected as his successor. In effect, this is a proceeding under General Corporation Law, § 25, to review a corporate election. Respondent move to dismiss the petition on the grounds (1) that petitioner has not legal capacity to bring this proceeding; (2) that the petition does not state facts sufficient to warrant the relief sought and (3) that the petition on its face shows that the relief sought can be obtained only by a plenary action. On such a motion, the allegations of the petition will be deemed to be true.
The petition alleges that the petitioner was a director of the corporation; that prior to the formation of the corporation, petitioner and the individual respondents agreed orally that no resolution or action of the board of directors of stockolders would be effective unless enacted by unanimous consent; that it was further agreed that petitioner or his designee would be elected as director so long as he or his designee was a stockholder; that the individual respondents represented to petitioner that the articles of incorporation, the minutes and the by-laws of the corporation amply protected petitioner in this respect.
It is further alleged that on August 13, 1956, a notice was sent to all stockholders advising them of a meeting to be held on August 28, 1956, to consider whether petitioner should be removed from the office of director, and if so, to elect a successor. Petitioner is not a stockholder and could not attend the meeting, but his wife attended and so did the respondents. A resolution was adopted, though not by unanimous consent, to remove petitioner from the office of director. The respondent Bendes was elected to succeed the petitioner.
It is further alleged that the corporation never adopted by-laws providing for the removal of a director without cause, that petitioner was never served with charges of any kind nor afforded any opportunity to...
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Ellis v. Broder
...172). Similar statements were made in Ming v. Simpkins (59 Misc 2d 853 [Sup Ct, Queens County 1968]) and Matter of Teperman v. Atcos Baths (4 Misc 2d 738 [Sup Ct, Queens County 1956]). Ironically, a summary of the foregoing principles is set forth in a text coauthored by Daniel Kurtz, a mem......
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Teperman v. Atcos Baths, Inc.
...institution of this proceeding, respondents moved to dismiss the petition for insufficiency on its face. This motion was denied. 4 Misc.2d 738, 158 N.Y.S.2d 391. Thereafter, respondents served their answer, and appellant moved to restore the proceeding to the Special Term calendar. In his s......