Opinion
March 29, 1990
Appeal from the Supreme Court, New York County (Stanley Parness, J.).
Respondent elected to purchase petitioners' shares, pursuant to Business Corporation Law § 1118, in response to the latter's petition for dissolution under Business Corporation Law § 1104-a. That was the position taken by respondent in arguing an earlier appeal before this court ( 139 A.D.2d 471) regardless of any interpretation of the now-disputed language in the opinion of the late Justice Wallace R. Cotton, which had temporarily set aside the election until after provisional remedies were in place. Inasmuch as an election to purchase is superior to dissolution, in that it maintains the viability of the corporation (Matter of Public Relations Aids, 109 A.D.2d 502, 508), denial of respondent's effort to withdraw that election was a proper exercise of discretion. Respondent has not borne its burden of proving that having to redeem petitioners' stock would render the corporation insolvent under Business Corporation Law § 513 (a) (Vowteras v Argo Compressor Serv. Corp., 83 A.D.2d 834, 835, lv denied 55 N.Y.2d 605).
Concur — Kupferman, J.P., Ross, Milonas, Asch and Ellerin, JJ.