Energy Coop. of Am., Inc. v. Luigi's Family Bakery, Inc.

3 Citing cases

  1. Bonanni v. Horizons Inv'rs Corp.

    179 A.D.3d 995 (N.Y. App. Div. 2020)   Cited 18 times   1 Legal Analyses

    "The hallmarks of a de facto merger are the ‘continuity of ownership; cessation of ordinary business and dissolution of the [predecessor] as soon as possible; assumption by the successor of the liabilities ordinarily necessary for the uninterrupted continuation of the business of the acquired corporation; and, continuity of management, personnel, physical location, assets, and general business operation’ " ( id. , quoting Fitzgerald v. Fahnestock & Co. , 286 A.D.2d 573, 574, 730 N.Y.S.2d 70 ; seeEnergy Coop. of Am., Inc. v. Luigi's Family Bakery, Inc. , 170 A.D.3d 1629, 1629–1630, 97 N.Y.S.3d 372 ). Where the acquired corporation is "shorn of its assets" and becomes a "shell," legal dissolution is not required to support a finding of de facto merger ( Matter of AT & S Transp., LLC v. Odyssey Logistics & Tech. Corp. , 22 A.D.3d at 753, 803 N.Y.S.2d 118 ; seeEnergy Coop. of Am., Inc. v. Luigi's Family Bakery, Inc. , 170 A.D.3d at 1630, 97 N.Y.S.3d 372 ).

  2. Dutton v. Young Men's Christian Ass'n of Buffalo Niagara

    207 A.D.3d 1038 (N.Y. App. Div. 2022)   Cited 14 times

    In addition, under the transfer agreement, YMCA Buffalo agreed to give current personnel of YMCA Niagara Falls preference in maintaining their jobs and for training, incorporate YMCA Niagara Falls’ mission, and allow the specified board and trustee members of YMCA Niagara Falls to serve in managerial roles on the respective boards of YMCA Buffalo. Moreover, the transfer agreement provided that YMCA Buffalo also received all tangible and intangible assets of YMCA Niagara Falls, including furniture, fixtures, computers, supplies, "know-how ... and other operational information," use of trade names, membership lists, goodwill, records, cash and deposits, accounts receivable, real property, vehicles, and telephone numbers (see e.g.Energy Coop. of Am., Inc. v. Luigi's Family Bakery, Inc. , 170 A.D.3d 1629, 1630, 97 N.Y.S.3d 372 [4th Dept. 2019] ; Fitzgerald v. Fahnestock & Co. , 286 A.D.2d 573, 575, 730 N.Y.S.2d 70 [1st Dept. 2001] ; Sweatland , 181 A.D.2d at 244-245, 587 N.Y.S.2d 54 ).

  3. BSREP US 3333 Broadway LLC v. Perez

    65 Misc. 3d 150 (N.Y. App. Term 2019)

    Defendant's lease obligations were not suspended based upon her claimed economic hardship. Defendant's challenge to the affidavit of nonmilitary service is both unpreserved for appellate review (seeDiarrassouba v. Consolidated Edison Co. of NY Inc. , 123 A.D.3d 525 [2014] ) and unavailing, since no default judgment was entered (seeEnergy Coop. of Am., Inc. v. Luigi's Family Bakery, Inc. , 170 A.D.3d 1629, 1630 [2019] ). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.