Opinion
No. 2005-01353.
November 5, 2009.
Order, Supreme Court, New York County (Eileen Bransten, J.), entered April 22, 2009, which denied plaintiffs motion for a preliminary injunction, unanimously affirmed, without costs.
Karabelas Papagianopoulos, LLP, Astoria, N.Y. (Santo Golino of counsel), for appellant.
Kimon C. Thermos, Astoria, N.Y., for respondents.
Before: Sweeny, J.P., Buckley, Catterson, Acosta and Freedman, JJ.
The court properly denied plaintiffs motion as he failed to show a likelihood of success on his claim that the loan agreement with defendant was unenforceable. The agreement provided that, in the event of a default, the parties would value plaintiffs minority stake in their closely held company pursuant to a formula. Defendant would pay plaintiff the difference between this valuation and the amount owed on the loan, and defendant would then own the shares. Contrary to plaintiffs contention, this was not a liquidated damages clause, but a means of valuing the consideration plaintiff offered for repayment ( cf. Bui v Industrial Enters, of Am., Inc., 41 AD3d 238; Quaker Oats Co. v Reilly, 274 AD2d 565).
Furthermore, the agreement was neither procedurally nor substantively unconscionable ( see Gillman v Chase Manhattan Bank, 73 NY2d 1, 10-11). The record demonstrates that plaintiff, a sophisticated businessman, was not forced into the loan, as his desire for the funds was not some emergent need, but rather so that he could, inter alia, pursue investment opportunities ( see Gillman v Chase Manhattan Bank, 73 NY2d at 11). Moreover, although plaintiff showed he might suffer a 35% discount for his minority share in the closely held corporation, whose sole asset was a parcel of commercial real estate, such discount was not unreasonable under the circumstances ( see Truck Rent-A-Ctr. v Puritan Farms 2nd, 41 NY2d 420, 424-426).
We have considered plaintiffs remaining contentions, including that the court should have held an evidentiary hearing, and find them unavailing.