Opinion
12677 Index No. 652621/2014 Case No. 2019-05104
12-17-2020
Ester J. O'MAHONEY et al., Plaintiffs–Appellants–Respondents, v. Gavin WHISTON et al., Defendants–Respondents–Appellants.
Samuel Goldman & Associates, New York (Samuel Goldman of counsel), for appellants-respondents. Elaine Platt, New York, for respondents-appellants.
Samuel Goldman & Associates, New York (Samuel Goldman of counsel), for appellants-respondents.
Elaine Platt, New York, for respondents-appellants.
Manzanet–Daniels, J.P., Gesmer, Kern, Oing, Moulton, JJ.
Order, Supreme Court, New York County (Jennifer G. Schecter, J.), entered October 4, 2019, which denied the parties' motions for summary judgment and requests for sanctions, unanimously affirmed, without costs.
Summary judgment was properly denied because the record raises issues of fact including whether a bar opened by defendants qualified as a corporate opportunity of the bar and corporation owned by plaintiffs and defendants together, whether assets of the corporation, including its goodwill, were given to the new bar for no consideration, whether the individual defendants looted, committed waste, or paid themselves unfair bonuses, whether a loan issued by plaintiffs to the corporation was repaid, and whether the individual defendants' treatment of plaintiffs amounted to shareholder oppression (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ). There is no reason to disturb the portion of the court's order directing defendants to provide an accounting.
The court did not abuse its discretion in denying defendant's application for sanctions (see Yenom Corp. v. 155 Wooster St. Inc., 33 A.D.3d 67, 70, 818 N.Y.S.2d 210 [1st Dept. 2006] ).