In a December 2, 2010, decision by Justice Bucaria, the court denied defendant-50% shareholder’s motion to dismiss but granted his motion to compel discovery. The court also denied plaintiff-50% shareholder’s motion for summary judgment but granted him leave to amend the complaint. Plaintiff entered into an agreement with a third party to sell his interest in defendant-corporation, and defendant refused to consent to the sale as required under the agreement. Plaintiff sought relief with respect to his entitlement to a stock certificate and the alienability of his shares, and defendant moved to dismiss. Notwithstanding the individual nature of plaintiff’s claims against the corporation, the court denied defendant’s motion to dismiss based on standing because the complaint did not confuse plaintiff’s derivative and individual rights. And notwithstanding the lack of any stock certificates, the court also denied defendant’s motion based on failure to state a claim because the corporation’s by-laws provided that its shares would be represented by certificates, justifying plaintiff’s proceeding to compel the corporation to issue certificates. The court, however, denied plaintiff’s motion for summary judgment based on evidence that the shareholders agreed informally that the corporation’s shares would be uncertified and that plaintiff’s sale of his interest to the third party would constitute a fraudulent transfer. Finally, the court granted defendant’s motion to compel discovery related to informal meetings of the directors or shareholders and granted plaintiff’s motion for leave to amend the complaint in his individual capacity.
Tulino v Tulino, Sup Ct, Nassau County, December 2, 2010, Bucaria, J., Index No. 007081/09