Opinion
June 23, 1997
Appeal from the Supreme Court, Westchester County (Rosato, J.).
Ordered that the order as amended is reversed, on the law, with costs, and the motion for summary judgment is denied as to both defendants.
In his petition the plaintiff/petitioner, Frank R. LaBarbera, sufficiently pleaded a cause of action for dissolution under Business Corporation Law § 1104-a (a) (1) and (2) ( see, Matter of HGK Asset Mgt., 228 A.D.2d 246), the allegations of which, if borne out, would entitle him to relief. Therefore, it was error to dismiss the petition where LaBarbera alleged that he was made a 50% shareholder in the subject professional service corporation and the certificate of incorporation reflected that he was "to be [one of] the original stockholders, directors and officers of the corporation".
In light of the above and in the face of the individual respondent's denial that LaBarbera held any interest in the corporation, the court should have ordered a hearing to determine whether the petitioner was a shareholder and held the requisite amount of shares (20% or more) to bring a proceeding pursuant to Business Corporation Law § 1104-a ( see, Matter of Kournianos, 175 A.D.2d 129, 129-130). The dismissal of the proceeding was inappropriate in the presence of a genuine issue of fact regarding the threshold matter of standing ( see, CPLR 3212 [b]) and a hearing must be held thereon.
Upon our review of the complaint, we find that it too was improperly dismissed. The causes of actions asserted against the defendants/respondents are not barred by General Obligations Law § 5-701 (a) (1) ( see, Cohon Co. v. Russell, 23 N.Y.2d 569, 574; Hubbell Elec. v. State of New York, 153 Misc.2d 810, 812-813; General Obligations Law § 5-701 [b] [3] [c]).
Miller, J.P., Sullivan, Joy and Altman, JJ., concur.