Opinion
December 14, 1972
Order, Supreme Court, Bronx County, entered September 13, 1972, staying the dissolution proceedings for three corporations pending determination of a dervative stockholders' suit, unanimously reversed, on the law and the facts, without costs and without disbursements, the motion denied and the stay vacated. The three corporations involved, own real estate parcels in New York and Bronx Counties. Two different families each own equal stock shares. The Racklin family has been in charge of operations since the death in 1966 of a member of the Goldstone family, because, with a deadlock between the two groups of shareholders, there was a failure to fill the Goldstone vacancy on the board of directors, which left the Racklin family in control. Special Term noted that while the parties were not all the same, the essential issue common to both litigations was the corporate assets subject to waste. Section 1104 Bus. Corp. of the Business Corporation Law with respect to dissolution in the event of deadlock applies. The derivative stockholders' action covers past activities, but the demand for dissolution also contemplates the future and ought not to be stayed for the resolution of the other aspect. ( Leibert v. Clapp, 13 N.Y.2d 313; Matter of Garay v. Langer, 37 A.D.2d 545; Gilbert v. Hamilton, 35 A.D.2d 715, affd. without opn. 29 N.Y.2d 842.) The time for the defendant to answer in this dissolution proceeding is extended until 20 days after service upon respondents by appellants of a copy of the order entered herewith.
Concur — McGivern, J.P., Nunez, Kupferman, McNally and Capozzoli, JJ.