Opinion
November 23, 1993
Appeal from the Supreme Court, New York County (Martin Stecher, J.).
The IAS Court properly determined that the testimony of plaintiff's witnesses, in relevant part, was not credible. The original founder's agreement, that the company would be owned equally by the three partners, is well established by supporting documentation and uncontroverted testimony. There exists neither documentary evidence nor credible testimony establishing the putative oral conditions precedent to exercise of subscription rights by decedent, to wit, that Leader's loan to the corporation had to be repaid as a condition precedent to decedent's stock purchase, and that such also was conditioned upon the purchasing partner's continued employment by the corporation. Nor has plaintiff submitted credible evidence of an agreement that such rights were personal and terminated upon death.
However, while it cannot be established with certainty at what point the estate evinced a desire to exercise decedent's subscription rights, the exercise of which was frustrated by Leader, the very filing of plaintiff's complaint, seeking a judicial declaration preventing exercise of such rights, evinces that at some prior time, the estate explicitly indicated its intention to purchase the stock. As such, the date of the complaint, March 28, 1986, is the latest date defendant had indicated its intention to purchase the stock. Since a party's repudiation of a contract excuses performance or even tender of performance by the aggrieved party (Strasbourger v Leerburger, 233 N.Y. 55, 60; Schmith v Fornander, 26 Misc.2d 339, 343, affd 13 A.D.2d 478), lack of evidence of formal tender of payment for the stock prior to that date does not require a different result.
We have considered plaintiff's remaining contentions and find them to be meritless.
Concur — Sullivan, J.P., Rosenberger, Ross, Asch and Rubin, JJ.