Teperman v. Atcos Baths, Inc.

• Decision Date: 28 August 1956
• Parties: Petition of Edward C. TEPERMAN, Appellant, 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 — Appellate Division

Page 765

182 N.Y.S.2d 765

7 A.D.2d 854

Petition of Edward C. TEPERMAN, Appellant, 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 August 28, 1956.

Supreme Court, Appellate Division, Second Department.

Jan. 12, 1959.

Isaac Anolic, New York City, for appellant.

Zarah Williamson, New York City, for respondents.

Before NOLAN, P. J., and UGHETTA, WENZEL, BELDOCK and KLEINFELD, JJ.

MEMORANDUM BY THE COURT.

In a proceeding brought by a removed director of a corporation to annul his removal, to vacate the election of his successor, and to reinstate him as a director, the appeal is from an order which, inter alia, dismissed the petition on the merits, and from the judgment entered thereon.

Order affirmed, without costs.

After 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 supporting papers, appellant asked 'that the Court on the return date of this motion grant my petition on the merits and the papers before it and also on the minutes of the [stockholders'] meeting.' Respondents thereupon cross-moved for an order determining the application on the merits by dismissing the petition summarily. This cross motion was based on the pleadings and also on annexed affidavits and exhibits. Appellant's affidavit in opposition to respondents' cross motion expressly requested the court to 'make a summary disposition of this application and not refer it for trial to Special Term or an Official Referee.' The effect of the motion and cross motion was to bring the proceeding on at Special Term in exactly the same manner as if there had been no previous motion to dismiss for insufficiency and respondents had merely submitted an answer supported by affidavits and exhibits.

If this proceeding be considered one pursuant to article 78 of the Civil Practice Act, section 1295 thereof empowered the Special Term to determine the proceeding on the merits on the return day of the application, without a hearing, if the papers did not raise any triable issue of fact. The procedure under that section is exactly analogous to summary judgment under rule 113 of the Rules of Civil Practice (Matter of Rotkiewicz v. Department of Mental Hygiene of State of N. Y., 283 App.Div. 458, 461, 128 N.Y.S.2d 654, 656; Matter of Ackerman v. Kern, 256 App.Div. 626, 629-630, 11 N.Y.S.2d 374, 376-377, affirmed 281 N.Y. 87, 22 N.E.2d 247; Third Annual Report of N. Y. Judicial Council, 1937, p. 188; see, also, Civ.Prac. Act, § 1291; Matter of Auer v. Dressel, 306 N.Y. 427, 431, 118 N.E.2d 590, 48 A.L.R.2d 604).

If this proceeding be considered one pursuant to section 25 of the General Corporation Law, the Special Term similarly had the power to determine it on the merits on the return day of the application, without a hearing, if the papers raised no triable issue of fact (Matter of Serenbetz, Sup., 46 N.Y.S.2d 475, affirmed 267 App.Div. 836, 46 N.Y.S.2d 127; cf. Matter of Femode Foundations, 2 A.D.2d 874, 156 N.Y.S.2d 246; Matter of Pleasant Val. Soc., 105 App.Div. 617, 93 N.Y.S. 1106).

In this proceeding, the papers raise no triable issue as to appellant's removal without cause. Nor do they raise any triable issue with respect to the adoption of the by-law authorizing such removal, since appellant relies solely on the fact that one of the incorporators failed to sign the minutes of the incorporators' meeting at which the by-laws were adopted. However, the law is clear that action taken at such a meeting is effective even if the minutes were not signed, and the unsigned minutes are competent as evidence of the action taken at the meeting (Woodhaven Bank v. Brooklyn Hills Improvement Co., 69 App.Div. 489, 74 N.Y.S. 1023; Moss v. Averell, 10 N.Y. 449; Handley v. Stutz, 139 U.S. 417, 11 S.Ct. 530, 35 L.Ed. 227). Moreover, the action taken at...