Strasburger v. Rosenheim

15 Citing cases

  1. Diamond v. Davis

    38 N.Y.S.2d 103 (N.Y. Misc. 1942)   Cited 13 times
    Holding that a bonus or option may be granted to a valued corporate officer "as an incentive to retain his services, sharpen his interest, intensify his zeal, spur him on to more ardent effort in the interest and for the benefit of the company, and to enable him thereby to share in the resulting success of the enterprise"

    Plaintiff by Rule 113 was required to but has not shown facts which may be deemed by the court sufficient to raise an issue with respect to the verity and conclusiveness of defendants' documentary evidence. Strasburger v. Rosenheim, 234 App.Div. 544, 547, 255 N.Y.S. 316. Plaintiff states that the language of the stock option plan is "prospective and not retroactive" and therefore did not inure to the benefit of Davis. This statement is not founded in fact because the plan (Exhibit 22) specifically provides: "Any or all options heretofore granted which in the option of the board of directors conforms substantially to the terms of this plan and which remain wholly or partly unexercised shall be deemed to be options entered into and existing under this plan."

  2. Anderson v. Source Equities, Inc.

    43 A.D.2d 921 (N.Y. App. Div. 1974)   Cited 2 times

    ( Rubin v. Irving Trust Co., 305 N.Y. 288, 306; Kramer v. Harris, 9 A.D.2d 282, 283; see, also, Ehrlich v. American Moninger Greenhouse Mfg. Co., 26 N.Y.2d 255.) Although summary judgment may be inappropriate on the issue of intent when the evidence is susceptible of conflicting inferences, no such conflicting evidence is here presented. ( Strasburger v. Rosenheim, 234 App. Div. 544, 547; Kramer v. Harris, supra.)

  3. Leumi Financial Corporation v. Richter

    24 A.D.2d 855 (N.Y. App. Div. 1965)   Cited 74 times

    Moreover, if it were necessary to reach the question, while it may purport to create an issue of fact, the assertions do not raise a triable issue. To require a trial such fact issue must be genuine, bona fide and substantial ( Richard v. Credit Suisse, 242 N.Y. 346, 350; Strasburger v. Rosenheim, 234 App. Div. 544, 547). In the circumstances of this case, including the apparent sophistication of the defendants — an attorney, an accountant, and an investment counselor — the issue tendered does not meet the prescribed standard.

  4. Ball v. United Artists Corp.

    13 A.D.2d 133 (N.Y. App. Div. 1961)   Cited 27 times
    In Ball v. United Artists Corp. (13 A.D.2d 133, 137) the court said: "Concededly, however, words of common speech, including commonplace expressions, may, by reason of their use and association with particular goods or with a particular business or enterprise, acquire a special significance with the general public or a segment thereof, namely, they may become generally known and referred to as the title or name for such goods, business or enterprise.

    Lacking the appearance of a genuine and substantial issue of fact, the court may and should dispose of the matter upon the law, and direct judgment accordingly. ( Strasburger v. Rosenheim, 234 App. Div. 544, 547.) In determining the primary question involved, namely, whether or not there is here a genuine issue for trial, we must not lose sight of the nature of this particular action and the theory of plaintiffs' alleged causes.

  5. Barclay Commerce Corp. v. Finkelstein

    11 A.D.2d 327 (N.Y. App. Div. 1960)   Cited 6 times
    In Barclay Commerce Corp. v. Finkelstein (11 A.D.2d 327, 328), this court noted that the heter iska constitutes "merely a compliance in form with Hebraic law", that a partnership is not created thereby and that the issue is devoid of merit (see also, Barclays Discount Bank v. Levy, 743 F.2d 722, 724).

    The plaintiff explained the purpose of the "Heter Iska" as being merely a compliance in form with Hebraic law, but did not create a partnership or intend to create one and its explanation of the "Heter Iska" and its purpose is not contradicted by the defendants, nor do they deny the fraud alleged. Upon the whole record we find no triable issue raised ( Strasburger v. Rosenheim, 234 App. Div. 544; Kramer v. Harris, 9 A.D.2d 282, 283). Additionally, the claim of joint venture in the offset and counterclaim raises what is at best a "phantom" issue and is clearly without merit ( Strasburger v. Rosenheim, supra; cf. Richard v. Credit Suisse, 242 N.Y. 346). The issue sought to be created is neither genuine nor substantial. Accordingly, the order appealed from should be reversed, on the law and the facts, the motion for summary judgment granted, with costs, the counterclaim dismissed on the merits and the case is directed to be set down for an assessment of damages.

  6. Steinbugler v. William C. Atwater Co., Inc.

    264 App. Div. 864 (N.Y. App. Div. 1942)   Cited 2 times

    Taylor, JJ., concur; Lazansky, P.J., concurs in the dismissal of the appeal from the amended judgment but otherwise dissents and votes to reverse the judgment and to dismiss the complaint on the ground that it does not state facts sufficient to constitute a cause of action, on the authority of the rule of law stated in Topken, Loring Schwartz, Inc., v. Schwartz ( 249 N.Y. 206). It is suggested that the Topken case has been overruled by Titterington v. Colvin ( 269 N.Y. 550), where, on motion for reargument ( 270 N.Y. 321), the Court of Appeals said: "We do not approve the ruling below that the contract was void under Topken, Loring Schwartz, Inc., v. Schwartz ( 249 N.Y. 206)." This cannot be said to be a disaffirmance of the Topken case. It may be that in the Titterington case the Court of Appeals was of opinion that the contract therein was not void because (1) it might be construed as an agreement between stockholders and not an agreement between the corporation and stockholders ( Strasburger v. Rosenheim, 234 App. Div. 544), although it is signed by the corporation; (2) the contract had been performed by virtue of an agreement between George A. Titterington, executor of the estate of Morris M. Titterington, deceased; Charles H. Colvin and Pioneer Instrument Co., Inc., dated June 10, 1929; (3) the value of the stock to be delivered by the retiring stockholder was to be paid by delivering to the seller third preferred stock carrying six per cent cumulative dividends, subject to retirement or repurchase by the corporation at any time on ten days notice over a period of ten years; (4) at the time of the delivery of the stock by the stockholder to the corporation, the corporation was required to reassign to the seller as collateral security for the retirement and payment of the third preferred stock all of the stock being sold by the seller to the corporation and, in the event of a default on the part of the corporation, there was to be a sale of the common stock at public auction and the corporation was to

  7. Wallace v. Sperl

    2007 N.Y. Slip Op. 32751 (N.Y. Sup. Ct. 2007)

    In order for opposing parties to avoid the granting of summary judgment, they must show real and substantial facts sufficient to entitle her to defend the action in question ( see.Strasburger vRosenheim, 234 AD 544, 255 NYS 316 [1st Dept 1932]). They must show that they have a bona fide defense to the action, one which they may be able to establish.

  8. Augustyniak v. Schecht

    2007 N.Y. Slip Op. 32749 (N.Y. Sup. Ct. 2007)

    Defendant SCHECHT had an unequivocal obligation to obey the Vehicle and Traffic Laws of the State of New York, and Plaintiff, as the driver with the right of way, was entitled to anticipate that Defendant would do so, yielding to her ( See:Bongiovi v Hoffman, Supra). In order for Defendants to avoid the granting of summary judgment, they must show real and substantial facts sufficient to entitle them to defend the action in question ( See:Strasburger v Rosenheim, 234 AD 544 [1st Dept 1932]). Furthermore, to grant summary judgment, it must clearly appear that there are no material issues of fact ( See:Sillman v TwentiethCentury-Fox Film Corp, 3 NY2d 395, 144 NE2d 387).

  9. Weis Co. v. Offenberger

    31 Misc. 2d 628 (N.Y. Misc. 1961)   Cited 13 times

    Rule 113 of the Rules of Civil Practice would serve no useful purpose if frivolous and transparently insufficient proofs such as have been brought forward here were held to create a triable issue. ( Richard v. Credit Suisse, 242 N.Y. 346; Dwan v. Massarene, 199 App. Div. 872; Strasburger v. Rosenheim, 234 App. Div. 544; Gravenhorst v. Zimmerman, 236 N.Y. 22; Hanrog Distr. Corp. v. Hanioti, 10 Misc.2d 659.) As to the instant motion, the purpose of summary judgment procedure is to search out the evidentiary facts and determine the existence of an issue from them.

  10. Grimaldi v. Coco-Cola Bottling Co.

    29 Misc. 2d 406 (N.Y. Sup. Ct. 1961)

    "A shadowy semblance of an issue is not enough to defeat the motion. Rule 113 of the Rules of Civil Practice would serve no useful purpose if frivolous and transparently insufficient proofs such as have been brought forward here were held to create a triable issue ( Richard v. Credit Suisse, 242 N.Y. 346; Dwan v. Massarene, 199 App. Div. 872; Strasburger v. Rosenheim, 234 App. Div. 544; Gravenhorst v. Zimmerman, 236 N.Y. 22)." ( Hanrog Dist. Corp. v. Hanioti, 10 Misc.2d 659, 660.)