Summary
In Matter of WTB Props. (291 AD2d 566 [2nd Dept 2002]), where the petitioner's Order to Show Cause did not provide for publication, was not published, and was not served upon the New York State Department of Taxation and Finance, the Court held that the lower court could not order the dissolution before the statutory requirements were met (see Matter of Gould Erectors & Rigging, Inc., 119 AD3d 1039, 1040 [3rd Dept 2014]; La Sorsa v Algen Press Corp., 105 AD2d 771, 772 [2nd Dept 1984].).
Summary of this case from Corner Furniture Disc. Ctr., Inc. v. SapirsteinOpinion
2001-04119, 2001-04124
Argued January 31, 2002.
February 25, 2002.
In a proceeding, inter alia, pursuant to Business Corporation Law § 1104-a for judicial dissolution of a closely-held corporation, Lisa Barbera, individually and as guardian of Joseph J. Barbera, and Bruna Barbera appeal (1) from an order of the Supreme Court, Westchester County (Barone, J.), entered April 18, 2001, which denied their motion to dismiss the petition and granted that branch of the petitioner's cross motion which was for leave to amend the petition, and (2), as limited by their brief, from so much of an order of the same court, also entered April 18, 2001, as granted that branch of the petition which was to dissolve WTB Properties, Inc.
Bleakley Platt Schmidt, White Plains, N.Y. (William P. Harrington and Anne B. Cahill of counsel), for appellants.
William T. Barbera, Pelham, N.Y., respondent pro se.
Before: FRED T. SANTUCCI, J.P., MYRIAM J. ALTMAN, ANITA R. FLORIO, GLORIA GOLDSTEIN, JJ.
ORDERED that the order denying the motion to dismiss the petition and granting that branch of the cross motion which was for leave to amend the petition is affirmed, without costs or disbursements; and it is further,
ORDERED that the order granting that branch of the petition which was to dissolve WTB Properties, Inc., is reversed insofar as appealed from, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings in accordance herewith.
Business Corporation Law § 1106 requires, among other things, that a copy of an order to show cause seeking dissolution be published "at least once in each of the three weeks before the time appointed for the hearing thereon" as prescribed in the order, and that a copy of the order be served upon the New York State Tax Commission (hereinafter the Tax Commission) (see, Business Corporation Law § 1106[b], [c]). The petitioner's order to show cause did not provide for publication, was not published, and was not served on the Tax Commission. While the Supreme Court providently exercised its discretion in permitting the petitioner to amend the petition and comply with the statutory requirements (see, Business Corporation Law § 1107; La Sorsa v. Algen Press Corp., 105 A.D.2d 771, 772), it erred in ordering dissolution before those requirements were satisfied (see, La Sorsa v. Algen Press Corp., supra; Muller v. Silverstein, 92 A.D.2d 455). Further, because there are questions of fact regarding the merits of the petition and the appropriate remedy, the Supreme Court should not have ordered dissolution without conducting a hearing (see, Matter of Steinberg [Cross Country Paper Prods. Corp.], 249 A.D.2d 551; Matter of Fancy Windows Doors Mfg. Corp. [Fei Wu], 244 A.D.2d 484; Matter of Kournianos [H.M.G., Inc.], 175 A.D.2d 129).
The appellants' remaining contentions are either without merit or need not be addressed in light of our determination.
SANTUCCI, J.P., ALTMAN, FLORIO and GOLDSTEIN, JJ., concur.