FILED: NEW YORK COUNTY CLERK 03/12/ :54 PM INDEX NO /2017 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 03/12/2018

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x In the Matter of the Application of : : Index No /2017 FRANK D. CAPORUSSO, JOSEPH CAPORUSSO, MARION : CAPORUSSO, GIANNA CAPORUSSO, DOMENICA : CAPORUSSO, ROSEMARIE FLYNN and FILOMENA : ANTONIA, : : Petitioners, : For the Judicial Dissolution of : CAPMAR REALTY CORP., : CAPIT REALTY CO., INC., : FRANKMAR REALTY CORPORATION and : GRUMA ~r~~~~~~~~~~~~ REALTY CORP., ~ 7 :r Pursuant to Section 1104-a of the : Business Corporation Law. : x : : : : MEMORANDUM OF LAW IN OPPOSITION TO PETITION FOR DISSOLUTION AND IN SUPPORT OF CROSS-MOTION TO DISMISS, CONVERT OR CONSOLIDATE, AND IN THE ALTERNATIVE, FOR AN EVIDENTIARY HEARING HERRICK FEINSTEIN LLP R. ZACHARY GELBER LAW PLLC 36th 2 Park Avenue 347 W. 36 Street, Suite 805 New York, NY New York NY Carol Goodman R. Zachary Gelber Heather Robinson Previn Waran Tel: Tel: HF v v.2 1 of 29

2 TABLEOFCONTENTS TABLE OF AUTHORITIES... ii ~~ DHLe PRELIMINARY STATEMENT...- ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 1 - DISCUSSION...- ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 3 - I. PURSUANT TO CPLR 3016, 3211(A)(4), (5) and (7), THE PETITION FOR DISSOLUTION SHOULD BE DISMISSED...- â 4 - A. The Petition Should Be Dismissed Pursuant to CPLR...â â 4-1. Many of the Allegations in the Petition for Dissolution Are Barred by the Applicable Statute of Limitations and Should Be Dismissed Pursuant to CPLR 3211(a)(5) and the Equitable Doctrine of...â The Claims Pleaded To Support The Petition Should Be Dismissed For Failure To State a Claim Pursuant to CPLR 3211(a)(7)...- â 7 - B. The Allegations in the Petition for Dissolution Do Not Meet the Prevailing Standard and Should Be Dismissed in Favor of the Derivative Action...- â 9 - C. The Dissolution Should Also be Dismissed Pursuant to CPLR 3211(a)(4)...â...- â 13 - II. IF THE PETITION IS NOT DISMISSED, ALTERNATIVE RELIEF IS WARRANTED...- E~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 14 - A. At Minimum, These Proceedings Should Be Converted And/Or Consolidated With the Derivative Action...- â 14 - B. Alternatively, And Because Issues of Fact are Present, Discovery Should Occur Prior to Any Evidentiary Hearing on Dissolution...- â 16 - C. Although the Petition to Dissolve Should be Dismissed, to the Extent that the Court Holds a Hearing In Connection With Allegedly Improper Conduct, the Court Should Also Entertain Evidence of the Reasonable Petitioners' Value of the Shares and Allow the Corporations to Offer Buy- Out...- â 20 - CONCLUSION HF v v of 29

3 TABLE OF AUTHORITIES Page(s) Cases Application of Cantelmo, 275 A.D.221 (1st Dep't 1949)...21 Application of MacDougall, 150 A.D.2d 160, (1st Dept. 1989)...18 Application of Ng, 174 A.D.2d 523, 572 N.Y.S.2d 295 (1991) (1st Dep't 1991)...3, 7, 9 Basis Yield Alpha Fund (Master) v. Goldman Sachs Grp., Inc., 980 N.Y.S.2d 21 (1st Dep't 2014)...7 Belco Petroleum Corp. v. AIG Oil Rig, Inc., 164 A.D.2d 583 (1st Dep't 1991)...8 Berardi v. Berardi, 108 A.D.3d 406 (1st Dep't 2013)...7 Credit Alliance Corp. v. Arthur Andersen & Co., 65 N.Y.2d ~ ~ 536 (1985)...8 DiPace v. Figueroa, 223 A.D.2d 949 (3d Dep't 1996)...4 Fakiris v. Gusmar Enterprises, LLC, 54 Misc.3d 1215(A), (Sup. Ct. Queens Cty. Nov. 21, 2016)...18 Gimpel v. Bolstein, 477 N.Y.S.2d 1014 (Sup. Ct. Queens Cnty. 1984)...9, 10, 11, 13 Grammas v. Charla, 45 A.D.2d 756, 357 N.Y.S.2d 23 (1974)...15 In re Allchester Dev. Co., 34 A.D.2d 110 (2d Dept. 1970)...18, 22 In re Behedo, 39 Misc.3d 1241(A), 972 N.Y.S.2d 142 (Sup. Ct. Queens Cnty., 2013)...15 In re Cocolicchio, 6 Misc.3d 1041(A), 800 N.Y.S.2d 344 (Sup. Ct. N.Y. Cnty., 2005) of 29

4 In re Dissolution of Rencor Controls, Inc., 263 A.D.2d ~ ~ 845 (3d Dep't 1999)...8 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ In re Fancy Windows & Doors Mfg. Corp., 244 A.D.2d 484 (2d Dept. 1997)...19 In re Farega Realty Corp., 132 A.D.2d 797, 517 N.Y.S.2d 610 (3d Dep't 1987)...11 In re Kemp & Beatley, Inc., 64 N.Y.2d...19 ~ ~ ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ In re Kourianos, 175 A.D.2d 823 (2d Dept 1991)...18 In re Rosen, 476 N.Y.S.2d 625 (2d Dept. 1984)...17 In re Schwen, 154 A.D.2d 601, 546 N.Y.S.2d 429 (2d Dep't 1989)...18 In re Smith, 154 A.D.2d 537, 546 N.Y.S.2d 382 (2d Dep't 1989)...11 wn C4nsvaLrsw~ In re Steinberg, 249 A.D.2d 551 (2d Dept. 1998)...18 In re Taines, 111 Misc. 2d 5559, 444 N.Y.S.2d 540 (Sup. Ct. N.Y. Cnty., 1981)...15 In re WTB Properties, Inc., 291 A.D.2d 566 (2d Dept. 2002)...18 Kanbar v. Aronow, 260 A.D.2d 182, 688 N.Y.S.2d 28 (1st Dep't 1999)...8 Kemp & Beatlev. Inc., 64 N.Y.2d 63, 70-71, 484 N.Y.S.2d 799 (1984)...12 Kermanshah v. Kermanshah, 580 F. Supp. 2d 247 (S.D.N.Y. 2008)...4 Lichtman v. Mount Judah Cemetery, 269 A.D.2d 319, 705 N.Y.S.2d 23 (1st Dep't 2000)...8 Mardikos v. Arger, 116 Misc.2d 1028 (Sup. Ct. Kings Cty. Oct. 20, 1982)...17 HF v v of 29

5 Matter of Barabash, 31 N.Y.2d ~ ~ 76 (1972)...5 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Metropolitan Transportation Authority v. Triumph Advertising Productions, Inc., 116 A.D.2d 526, 497 N.Y,S.2d 673 (1st Dep't 1986)...8 Papas v. Fotinos, No. 7799/04, 2010 WL (Sup. Ct. Kings Cnty July 23, 2010)...5 Ricci v. First Time Around, Inc., 112 A.D.2d 794 (4th Dept. 1985)...18 Saratoga Cty. Chamber of Commerce v. Pataki, 100 N.Y.2d 801 (2003)...5 Schwen v. Village Times, Inc., No. 293/85, 1992 WL (Sup. Ct. Suffolk Cty. May 8, 1992)...22 Singh v. PGA Tour, Inc., No /2013, 2014 WL (Sup. Ct. N.Y. Cnty Feb. 13, 2014)...7 Skrodelis v. Norbergs, 272 A.D.2d 316 (2d Dep't 2000)...5 State of New York v. Cortelle Corp., 38 N.Y.2d 83 (1975)...4 Syncora Guarantee Inc., v. J.P. Morgan Sec. LLC, 110 A.D.3d 87 (1st Dep't 2013)...14 Wai Mei Ho v. Nest & Ginseng, Inc., 24 Misc. 1231(A) (Sup. Ct. Queens Cty. Feb. 28, Wall Street Transcript Corp. v. Ziff Communications Co., 225 A.D.2d 322, 638 N.Y.S.2d 640 (1st Dep't 1996)...8 White Light Prods., Inc. v. On the Scene Prods., Inc., 231 A.D.2d 90 (1 (1" Dep't 1997)...14 White v. Fee, No /11, 2012 WL (Sup. Ct. Westchester Cnty Jun. 7, 2012)...7 Whitney v. Whitney, 57 N.Y.2d 731 (1982)...14 Statutes BCL 1104-a...3, 5, 7, 17, 18. 1V 5 of 29

6 BLC 1104-a(a)(1)...3, 9, 10 BusinesS Corporation Law, 1111, subd. (b)...20 CPLR 213(1)...4 D~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ CPLR ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ CPLR ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ CPLR ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ CPLR , ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 18, 20, 22 CPLR , ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 4, 7 CPLR 3016(b)...7 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ CPLR ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ CPLR 3211(a)(4)...4, 13, 14 CPLR 3211(a)(5)...4 CPLR 3211(a)(7) e Y Or knb u S1neSSWCorporation Law... passim Other Authorities Fletcher's Cyclopedia Corporations [Permanent ed.] Vol. 16A, V 6 of 29

7 PRELIMINARY STATEMENT Relying on false allegations filed in a related derivative action five years ago by his cousin James F. Caporusso ("Jim"), Frank D. Caporusso (together with his immediate family, the "Petitioners" "Petitioners") seeks to dissolve the successful family real estate business his grandparents started 80 years ago. While Petitioners use flashy labels like looting and oppression to describe the conduct they don't seem to really understand, their allegations are actually far more pedestrian- 1) officer's salaries are purportedly too high; 2) small checks were made out to cash; 3) they don't have full access to the corporate books and records, and 4) too many tenant complaints. But even these unfounded allegations dissolve upon closer inspection, not even approaching the high standard needed to dissolve these highly functioning, fourth generation family business. While Petitioners' Petitioners main gripe is that their salaries are disproportionately low, Petitioners, along with their cousin Jim, receive significant compensation and benefits in line with historical norms and in line with their families' interests. What's more, at least one Petitioner has been a member of the Boards of Directors for almost all of the last 33 years, and has approved the precise compensation structure of which they now complain, a two-tiered salary system for working and non-working members, which has been in place for decades. Further, the checks and payments of which Petitioners complain are all properly reflected on the Companies' books and records and were made for valid business purposes. The Boards on which Petitioners have a seat, meet regularly, and the books and records (to which Petitioners claim to have limited access), are generally available at the corporate offices, and at the offices of its attorneys and accountants, as they have been for years. Finally, the 12 buildings that are the crown jewel of the Caporusso family business are well maintained and profitable. Tenants are satisfied with the efficient management, and vacancies are low. There is simply no basis for the "extreme remedy" of dissolving a thriving family business that supports more than 20 family members spread out 7 of 29

8 over three generations, and with renovations and capital improvement projects, will continue to thrive for future generations. In reality, the Petition for Dissolution has nothing to do with Petitioner's baseless allegations or Respondents' Respondents considered business judgments. Instead, the Petition is desperate (" plea by shareholder Frank D. Caporusso ("Frank D."), and his immediate family, not because they have been oppressed, but because of the parties' parties inability to reach a mediated resolution, which he had been relying on to fund his retirement (and to buy a vacation home). While Frank D. may be upset that he is unable to secure a large buy-out of his shares to fund his desired retirement, this is not a public company-but rather a fourth-generation family business that while highly successful, is not a liquid investment. Family members have a right to receive (and have received) distributions in keeping with their interests, and in line with what has been done for generations, but they have no right to compel a buy back of their shares. Given the duplicative nature of the allegations at issue here-they are cribbed almost verbatim from the complaint filed by Frank D.'s cousin Jim in a related derivative action-it is not surprising to find that they involve issues more appropriately addressed in a derivative action. Where, as here, there is no illegal, fraudulent or oppressive conduct, and shareholders' shareholders concerns relate to the purportedly negligent mismanagement of a highly functioning, profitable business-thatâ distributes over $1,600,000 a year in salary and benefits to its shareholders, on over $5,000,000 of revenue-a dissolution petition should be converted to a derivative proceeding. In this case, since the allegations are incredibly similar to the ongoing derivative complaint, they would most efficiently and simply be joined with the preexisting derivative case, which after years of (successful) motions to dismiss, and stalled mediation efforts, is finally ripe for the discovery, which should be ordered expeditiously. Ultimately, there is no basis for of 29

9 dissolving a profitable ongoing concern absent true shareholder oppression or malfeasance in management, of which none exists here.1 DISCUSSION Section 1104-a of New York's Business Corporations Law ("BLC") permits the extraordinary remedy of dissolution of a New York corporation where shareholders meet their steep burden in demonstrating that controlling shareholders or directors have engaged in "illegal, fraudulent, or oppressive actions," or have "looted, wasted or diverted" the corporation's property. See N.Y. Bus. Corp. Law 1104-a(a)(1), (2). The bar to dissolution is high, because it is only warranted in extreme cases, where majority shareholders use their power in gross and abusive ways to oppress the reasonable expectations of minority members. The Courts of this State have consistently declined to order the judicial dissolution of a corporation - a drastic and discretionary remedy - or to appoint a receiver, except in the most extreme circumstances and only as a last resort. See Application of Ng, 174 A.D.2d 523, 525, 572 N.Y.S.2d 295 (1991) (1st (" Dep't 1991) ("The ultimate remedy of dissolution and forced sale of corporate assets should only be applied as a last resort."). Because the Petition for Dissolution, based on allegations that mirror (almost verbatim) those in a related Derivative Action pending before this Court, does not even plead (much less substantiate) the allegations therein set forth with the requisite specificity mandated by N.Y. C.P.L.R. ("CPLR") 3016 and well-settled decisional law, and because most of the allegations are (in any case) time-barred, the Petition for Dissolution should be denied. The Petition should be dismissed its entirety or, in the alternative, converted into a derivative 1 (" The facts in support of this Motion are set forth in detail in the Affidavit of Christina Caporusso-Treitz ("Christina Aff."), filed together herewith, and hereby incorporated herein, as if set forth herein in full, and as supplemented by the Answer of 29

10 proceeding, in which case a discovery schedule should be set, and the actions-for Dissolution and the â pending Derivative Action-should be consolidated.2 consolidated. I. PURSUANT TO CPLR 3016, 3211(A)(4), (5) and (7), THE PETITION FOR DISSOLUTION SHOULD BE DISMISSED A. The Petition Should Be Dismissed Pursuant to CPLR Many of the Allegations in the Petition for Dissolution Are Barred by the Applicable Statute of Limitations and Should Be Dismissed Pursuant to CPLR 3211(a)(5) and the Equitable Doctrine of Laches The vast majority of the allegations set forth in the Petition for Dissolution, simply recycled from the 2013 complaint in the Derivative Action, are stale, time-barred, and therefore should be stricken and disregarded by the Court in considering the Petition for Dissolution. See CPLR 213(1). A claim for dissolution pursuant to BCL 1104-a is governed by the "so-called residual six-year period of limitation," State of New York v. Cortelle Corp., 38 N.Y.2d 83, 89 (1975), found in CPLR 213(1). See CPLR 213(1) (McKinney). See also DiPace v. Figueroa, 223 A.D.2d 949, 952 (3d Dep't 1996); Kermanshah v. Kermanshah, 580 F. Supp. 2d 247, 270 (S.D.N.Y. 2008). The period of limitation is measured from the "instances of alleged wrongdoing adverted to by [the petitioner] as grounds for dissolution." DiPace, 223 A.D.2d at 952. This time limitation creates a fatal deficiency for Petitioners, as there are no substantial allegations contained in the Petition for Dissolution that post-date the March 22, 2011 statutory cut-off. (See, e.g. Petition for Dissolution 35, 37, 38, 39 (time-barred allegations), and 40-2 Per the Court's directives issued at the hearing held March 7, 2018, Respondents address only Petitioner's request for a judicial dissolution herein, and will address Petitioner's request for other relief-a receiver, a permanent injunction, and a constructive trust-in a subsequent filing, due March 16, Pursuant to CPLR 404, a respondent in special proceeding such as this one "may raise an objection in point of law by setting it forth in his answer" and/or "by a motion to dismiss the petition." Respondents have filed an answer together herewith, and move to dismiss the Petition pursuant to CPLR 404, 3211, based on Petitioner's failure to adequately plead (much less prove), the allegations set forth in their petition of 29

11 43 (the allegations that fail, in whole or in part, due to Respondents' Respondents inability to discern whether or not they fall within the applicable statute of limitations)). The equitable doctrine of laches also applies in a proceeding seeking judicial dissolution of a corporation pursuant to BCL 1104-a. Papas v. Fotinos, No. 7799/04, 2010 WL , at *3 (Sup. Ct. Kings Cnty July 23, 2010) (citing Paris v. Anthony Ave., 160 A.D.2d 541, 542 (1st Dep't 1990). "The doctrine of laches is an equitable doctrine which bars enforcement of a right where there has been an unreasonable and inexcusable delay that results in prejudice to a party..." party...." Skrodelis v. â Norbergs, 272 A.D.2d 316, (2d Dep't 2000); see also Saratoga Cty. Chamber of Commerce v. Pataki, 100 N.Y.2d 801, 816 (2003); Matter of Barabash, 31 N.Y.2d â 76, (1972). It is beyond cavil that most of the allegations that Petitioners seek to assert as a basis for dissolution (salary structure, approved by Petitioners and in place for decades, going back to at least 1985 (see, e.g. Petition for Dissolution 35, 37, 38, 39 (time-barred allegations), and (the allegations that fail, in whole or in part, due to Respondents' Respondents inability to discern whether or not they fall within the applicable statute of limitations))at 31-32,; profit sharing plan, in place since 1997, see id. at 35; relating to 2009 divorce filings, see id. at 37; relating to alleged improper checks in 2001, concerning a company that closed in 2006, see id. at 39) fall well beyond the applicable statute of limitations, and thus must be stricken from the Petition, and cannot form the basis for any of the requested relief, even were they to be not otherwise deficient (which they are). What is left, after these time-barred (and ultimately baseless) allegations are removed-allegations that the Companies took out too much insurance, that small checks were made out to cash, postage, and other miscellaneous items, and a hedge-podge of other baseless claims about the accessibility of the Companies' books and records (which have at of 29

12 all times been made available to Petitioners)-hardly pass muster for adequately pleading a derivative action, much less an application seeking to have the Companies dissolved suit for oppression and looting. Further, questions exist as to whether Petitioners' Petitioners even meet the threshold 20% standing required to bring the Petition for Dissolution due to their participation in the decisions of the Board, and thus waiver and estoppel. This is a basic threshold issue that potentially threatens the validity of the Petition. Petitioners appear to complain about business practices that have existed at the Companies in near perpetuity (i.e. salaries versus distributions), salary scales that have been in place for years and reflect reasoned business decisions, and the Companies' rightful protection of its assets and interests in existing litigations that were not caused by any wrongful acts taken by the Companies. Remarkably, three of the petitioners have served on Boards of Directors that have in certain instances decided, and in other instances ratified, the very actions of the Companies complained of by Petitioners. While Petitioners complain that proper elections of Boards of Directors have not recently occurred, they make such complaint notwithstanding the fact that Petitioners have attended and participated in related meetings, and themselves been elected to Boards of Directors positions with various of the Companies. A shareholder whose own acts results in the complained of oppression cannot seek dissolution of the corporation using Business Corporation Law Section 1104-a. Issues of participation, waiver and estoppel are thus present requiring discovery from the Petitioners prior to evidentiary hearings. Application of Ng., 174 A.D.2d 523 (1" Dep't 1991) (factual issues of waiver and estoppel must be resolved prior to any order of dissolution) of 29

13 2. The Claims Pleaded To Support The Petition Should Be Dismissed For Failure To State a Claim Pursuant to CPLR 3211(a)(7) Petitioners base their Petition for Dissolution upon alleged oppression, looting, waste and diversion of corporate assets. Putting aside that there is no proof of any such allegations, the allegations themselves are deficient. Accordingly, pursuant to CPLR 3211(a)(7), Respondents move to dismiss the Petition for Dissolution as failing to state a claim for which relief can be granted, and for failing to meet the requisite pleading standard set forth in CPLR 3016(b), which, given the charges of fraud, theft and looting, require a level of specificity that is wholly lacking therein. "A CPLR 3211(a)(7) motion may be used... to dispose of an action in which the plaintiff has not stated a claim cognizable at law" and "to dispose of an action in which the plaintiff identified a cognizable cause of action but failed to assert a material allegation necessary to support the cause of action." Basis Yield Alpha Fund (Master) v. Goldman Sachs Grp.,,Inc.,. Inc., 980 N.Y.S.2d 21, 26 (1st Dep't 2014). While pleadings are typically construed liberally on a motion to dismiss, where a party alleges fraudulent conduct and/or breach of fiduciary responsibilities, as Petitioners have done here, they must "state the circumstances constituting the wrong...in detail." CPLR See also Berardi v. Berardi, 108 A.D.3d 406, (1st Dep't 2013) (claims for dissolution, including accusations that shareholder had been prevented from meaningful participation in company governance, not sustainable due to failure to plead with particularity); Singh v. PGA Tour, Inc., No /2013, 2014 WL , at *6, (Sup. Ct. N.Y. Cnty Feb. 13, 2014) (causes of action sounding in breach of fiduciary duty subject to heightened pleading requirements); White v. Fee, No /11, 2012 WL , at *15 (Sup. Ct. Westchester Cnty Jun. 7, 2012) (standard applicable to claims for dissolution is that of CPLR 3016). "[W]here there has been a failure to submit sufficient evidence to establish that of 29

14 dissolution is in order" dissolution or forced buy-out cannot be ordered. In re Dissolution of Rencor Controls, Inc., 263 A.D.2d 845, 846 (3d Dep't 1999). Setting aside the allegations that facially fail under the applicable statute of limitations (discussed supra), and the allegations that fail due to Respondents' inability to discern whether or not they fall within the applicable statute of limitations (see, e.g. Petition for Dissolution at 33, 34, 40-43), numerous allegations also fail due to the conclusory, "on information and belief," nature upon which they have been pleaded (see id. at 27-29, 35, 37-40, 43-45), and the fact that many allegations fail to support dissolution as a matter of law. In fact, in connection with the allegations of looting, wasting, and diverting of corporate assets, nearly every allegation pleaded has been upon "information and belief." (See id. at 27-29, 37-40, 44-45). Neither conclusory allegations, nor allegations pleaded on information and belief and in the absence of disclosure of their factual bases, should be credited by the Court in adjudicating a motion to dismiss. See Credit Alliance Corp. v. Arthur Andersen & Co., 65 N.Y.2d 536, 554 (1985) (conclusory allegations should not be credited, warranting dismissal of cause of action so pleaded).4 pleaded). (" cf Belco Petroleum Corp. v. AIG Oil Rig, Inc., 164 A.D.2d 583, 599 (1st Dep't 1991) ("We incumbent on [a plaintiff), at the pleading stage, to disclose the sources of its information and belief and has" otherwise come forward with whatever evidence it of the wrongdoing of which it complains). Critically, nowhere in their Petition for Dissolution have Petitioners fortified any of these "information and belief" belief allegations with any facts specifying the basis of their belief(s), in the absence of which, they have been deficiently pleaded. See Lichtman v. Mount Judah Cemetery, 269 A.D.2d 319, 320, 705 N.Y.S.2d belief' 23, 26 (1st Dep't 2000) (allegations "upon information and lacking the "necessary factual allegations" deemed insufficient under controlling pleading standards); Kanbar v. Aronow, 260 A.D.2d 182, 688 N.Y.S.2d 28 (1st Dep't 1999) (claims of fraud in the inducement dismissed where they "are all asserted on information and belief, without disclosure of the sources of information that form belief' the basis of the belief"); Wall Street Transcript Corp. v. Ziff Communications Co., 225 A.D.2d 322, 638 N.Y.S.2d 640, 641 (Ist Dep't 1996) (complaint for breach of fiduciary duty properly "belief" dismissed for failure to disclose source of information forming basis of plaintiffs where source of belief not readily apparent); Metropolitan Transportation Authority v. Triumph Advertising Productions, Inc., 116 A.D.2d 526, 528, 497 N.Y,S.2d 673, 675 (1st Dep't 1986) facts" (granting motion to dismiss on grounds that plaintiff failed to "allege to support allegations pleaded think it of 29

15 B. The Allegations in the Petition for Dissolution Do Not Meet the Prevailing Standard and Should Be Dismissed in Favor of the Derivative Action Dissolution of the Companies is entirely unwarranted based upon the allegations made in the Petition for Dissolution. "Forfeitures are not favored by the courts... corporations should not be destroyed without abundant reason. In other words, judicial dissolution of a corporation is viewed by the courts as an extreme remedy which should be granted with great caution and only when the facts of the case clearly warrant it." See Fletcher's Cyclopedia Corporations [Permanent ed.] Vol. 16A, 8035 (emphasis added); Application of Ng, 174 A.D.2d at 5265 (" ("The ultimate remedy of dissolution and forced sale of corporate assets should only be applied as a last resort."). As stated above, Petitioners claim a right to dissolve the Companies based on the purportedly "oppressive actions" of the Board, pursuant to BLC 1104-a(a)(1), as well as its waste, looting, and diversion of corporate assets, pursuant to 1104-a(a)(2) thereof. Stripped of the conclusory language of wrongdoing, the allegations of purported oppression are comprised of (1) being allegedly excluded from corporate management, including the removal of previous company counsel, and litigation strategy in connection with various legal proceedings; (2) being allegedly excluded from examination of corporate books and records; and (3) purported failures of corporate formalities. The allegations of waste, looting, and diversion purportedly arise from (1) the Companies' longstanding salary practices (which have remained in place for decades, and were approved by Petitioners themselves in their capacities as members of various Board of Directors); as well as (2) certain alleged instances of self-dealing and improper expenditures. On these fronts, Gimpel v. Bolstein, 477 N.Y.S.2d 1014 (Sup. Ct. Queens Cnty. 1984) is instructive. Gimpel was a shareholder in Gimpel Farms, Inc., a family corporation and was "'[u]pon information and belief' that defendant tortiously induced breach of contract for his personal gain) of 29

16 employed by the corporation in an important and sensitive managerial position until he was fired by the corporation. Id. at Gimpel alleged that he was thereafter not paid any salary, or dividends (far worse than Petitioners' position here, who collectively receive a monthly distribution of over $375,000 in salaries and benefits), and was denied access to managerial meetings and company information. Id. This is also incomparable to the facts here. Other allegations in the Gimpel petition for dissolution included the company's alleged failure to hold shareholders' meetings (unlike here, where a shareholders' meeting was held in September 2016, and subsequent 2017 meetings had been stayed by agreement of the parties pending the outcome of mediation, which remained ongoing until an impasse was reached on February 21, 2018). Id. at In light of this impasse, and as further explained in the Christina Affidavit submitted herewith, the Companies will notice an annual shareholders' meeting for May 2018 as permitted by the Companies' by-laws on days' notice. Gimpel further alleged looting, waste, and mismanagement, largely in the form of excessive salaries and the manipulation of corporate accounting. Id. The Gimpel court first addressed the question of what constitutes "oppressive" conduct under BCL 1104-a(a)(1), as that term is not defined by the statute. The court offered two potential analyses: (1) a violation by the majority of the "reasonable expectations" of the minority; and (2) burdensome, harsh, and wrongful conduct; a lack of probity and fair dealing in the affairs of a company to the prejudice of some of its members; or a visible departure from the standards of fair dealing, and a violation of fair play on which every shareholder who entrusts his money to a company is entitled to rely. Id. at The Gimpel Court found the "reasonable expectations" test to be inappropriate because of the company's advanced age, and the inherited nature of the stock, and relied upon the second formulation. Like here, the family of 29

17 business in Gimpel had been handed down through generations. Thus, all of the holders of voting shares were two generations removed from the adoption of the corporate form. "Since they all acquired their shares by bequest or gift from other parties, they in no sense chose each other as business associates." Id. at 1019; see also Pappas v. Fotinos, No. 7799/04, 2010 WL , at *9 (Sup. Ct. Kings Cnty. Jul. 23, 2010). While business partners who capitalize and begin a business venture together as joint participants may reasonably expect continued authority over company action, the same cannot be said of future generations of disperse family members who have obtained their interest by bequest generations later. As a result, there would be no reasonable expectations of participation with one another in management of the company.5 company. Petitioners claim that two of them were "frozen out" of management. (See Petition for Dissolution at â 49). Setting aside the fact that such allegations are patently false-petitioners have held seats on various Boards of the Companies, but for a few months' months time, continuously since 1985, Board meetings have been regularly held, and Petitioners have joined Jim in the Derivative Litigation and disingenuously request the litigation strategy of their adversariesthey fail as a matter of law to support dissolution of the Companies. See Gimpel v. Bolstein, diss, 477 N.Y.S.2d 1014 (Sup. Ct. Queens Cnty., 1984). Even were the allegations of lack of participation in management true (they are not), that the majority was managing the Companies 5 Evaluation of the Petition under even the "reasonable expectations" Petitioners' formulation does not salvage lackluster claims. In In re Smith, 154 A.D.2d 537, 546 N.Y.S.2d 382 (2d Dep't 1989), the Second Department considered the reasonable expectations of a stockholder who obtained his company positions by reason of inheritance. The court explained in connection with management, a stockholder has no vested right to become a director. Id. at 384. Remarkably, here, three (3) of the Petitioners have served, or are currently serving, in such capacity. Nor was a failure to issue dividends in Smith oppressive, especially given that no policy of declaring dividends ever appeared to exist. Id. In In re Smith, as here, the Petitioners acquiesced (in this instance for decades) to the day-to-day management of the Companies by others and the salary system implemented. See also In re Farega Realty Corp., 132 A.D.2d 797, 517 N.Y.S.2d 610 (3d Dep't 1987) (holding that petitioner had no reasonable expectation to manage or find occupation through companies based on court's examination of history of relationship between petitioner and company) of 29

18 according to its own judgment and not that of the minority, it is clearly not wrongful (but rather quite normal) for the Companies to be managed by those shareholders who collectively control majority interests. Nor is it wrongful for the Companies to follow decisions of a majority of the Boards of Directors, even if at odds with any paths or actions preferred by Petitioners herein. The New York Supreme Court has cautioned that "[m]ajority conduct should not be deemed oppressive simply because the petitioner's subjective hopes and desires in joining the venture are not fulfilled. Disappointment alone should not necessarily be equated with oppression." Kemp & Beatlev. Inc., 64 N.Y.2d 63, 70-71, 484 N.Y.S.2d 799, 804 (1984). As to allegations of failures of meetings, or any purported lack of access to books and records, while perhaps wrongful if true (the allegations are false), they do not, individually or collectively, constitute oppressive conduct such as would justify dissolution. Id. at 54. Further, despite their (hollow) protests, they have been given full access to the Companies' books and records. Books and records are kept on site at 418 E. 77th Street, L2, New York, NY 10075, and at the offices of Herrick, Feinstein. The Order of the Court dated April 8, 2013 (Judge Kapnick), vacated a temporary restraining order, and further ordered that the Companies shall continue to make available the corporate books and records for plaintiffs' inspection and photocopying. Judge Kapnick stated on the record: "[t]hey don't have to show it to you every single day. If you make an appointment, if you think there are things you didn't see that you aren't entitled to see, then let [Ms. Goodman] know and they will try to work that out for you." The Order states that the Companies "SHALL CONTINUE" to make available to plaintiffs, their agents and/or attorneys for inspection and photocopying the corporate books and records, including but not limited to, By-laws, Stock Transfer Ledger, minutes of the board of Directors, minutes of all shareholder meetings, and bank statements. (See Index No of 29

19 650442/2013, Decision and Order dated April 8, 2013, Dkt. No. 63). In addition, in connection with a September 2016 shareholder meeting and in connection with obtaining appraisals for the purposes of mediation this past summer, Respondents provided information beyond what is legally required. The documents and information sent to Petitioners include (but are not limited to) rent roles, cost and dates of completion for repair work, in each building, repairs to individual units, full DHCR registration rolls, leases, profit and loss statements, income and expense statements, information on superintendents and other employees, capital improvements, information concerning current plans for financing, and vacancies. Petitioners' Petitioners allegations (which are also the first cause of action in the Derivative Action under BCL 624, which this Court stated in its Decision and Order dated July 11, 2014 "appears to be in the nature of a discovery demand") are not only baseless but do not support the drastic remedy of dissolution. In Gimpel, as here, there existed a related derivative litigation in which the claims in issue were being litigated. The Court in Gimpel stated that the derivative action, wherein the same allegations were pleaded, "provides a sufficient remedy for any wrong that may have been done by these acts". Id. at 55. Given the foregoing, and exercising sound discretion, the Court found that the dissolution proceedings were not reasonably necessary for the protection of the rights or interests of any substantial number of shareholders or the petitioners. Thus the Court rejected the petition for dissolution in favor of the derivative proceeding in which certain of the claims requiring factual resolution moved forward. Respectfully, precisely the same should result is appropriate here. C. The Dissolution Should Also be Dismissed Pursuant to CPLR 3211(a)(4) Separately from Gimpel, dismissal in favor of the Derivative Action is additionally warranted under CPLR 3211(a)(4) because there is another action pending-caporusso v. â Caporusso, /2013-in which almost identical allegations have been made of 29

20 Under CPLR 3211(a)(4), a court may dismiss an action because "there is another action pending between the same parties for the same cause of action in a court of any state or the United States." Two factors are generally considered sufficient to merit dismissal under Section 3211(a)(4). First, there must be "substantial identity" as to both the parties and the cases must involve the "same subject matter or series of alleged wrongs" White Light Prods., Inc. v. On the Scene Prods., Inc., 231 A.D.2d 90, (1" Dep't 1997). Section 3211(a)(4) "vests the court with broad discretion in considering whether to dismiss an action" in favor of a prior pending action. Whitney v. Whitney, 57 N.Y.2d 731, 732 (1982). With regards to the identity of the parties, precise identity is not required particularly where the parties in both actions are "close corporate affiliates." Syncora Guarantee Inc., v. J.P. Morgan Sec. LLC, 110 A.D.3d 87, 96 (1st Dep't 2013). There can be no mistaking the fact that the allegations herein mimic, and arise out of the same purported series of wrongs alleged in the derivative action. While the named parties may, on first blush, appear to differ, the moving parties in both actions are not only corporate affiliates, but the Petitioners here have so inserted themselves in the derivative action so as to justify dismissal of this matter in favor of the previously-filed derivative proceedings. For instance, Petitioners, by the same counsel, have appeared in the derivative action, requested discovery and appeared before this Court. II. IF THE PETITION IS NOT DISMISSED, ALTERNATIVE RELIEF IS WARRANTED A. At Minimum, These Proceedings Should Be Converted And/Or Consolidated With the Derivative Action Should this Court decline to exercise its discretionary power to dismiss this action in favor of the derivative proceeding, then the Court should convert and/or consolidate these of 29

21 proceedings with the Derivative Action. In fact, New York courts have held that in precisely these situations, where facts in a derivative suit overlap significantly with the facts in a dissolution proceeding, a motion to consolidate should be granted. See In re Behedo, 39 Misc.3d 1241(A), 972 N.Y.S.2d 142 (Sup. Ct. Queens Cnty., 2013). In Behedo, the court granted consolidation of dissolution and derivative proceedings where they raised the same or similar issues as to alleged breaches of fiduciary duty, and where, as here, both actions were still in the early stages of discovery. Id. See also In re Taines, 111 Misc. 2d 5559, 444 N.Y.S.2d 540 (Sup. Ct. N.Y. Cnty., 1981) (consolidating dissolution proceedings and derivative action); In re Cocolicchio, 6 Misc.3d 1041(A), 800 N.Y.S.2d 344 (Sup. Ct. N.Y. Cnty., 2005) (consolidation of special proceedings with plenary matter appropriate where common questions are raised); Grammas v. â Charla, 45 A.D.2d 756, 756, 357 N.Y.S.2d 23, (1974) court may grant consolidation of a proceeding for dissolution with a derivative action). In such an instance, the court, upon motion, may order a joint trial of any or all the matters in issue, may order the actions consolidated, and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. "Where common questions of law or fact exist, a motion to consolidate should be granted absent a showing of prejudice to a substantial right by the party opposing the motion. In re Behedo, 39 Misc.3d 1241(A), 972 N.Y.S.2d 142 (Sup. Ct. Queens Cnty., 2013). Consolidation is appropriate where (as here) it would avoid unnecessary duplication of trials, save unnecessary costs and expense, and prevent an injustice which would result from divergent decisions based on the same facts." Id. at *2. A conversion or consolidation is warranted here, where there is a substantial identity of alleged wrongdoing, requiring the same discovery, pleaded in related actions, and where of 29

22 overlapping injunctive relief has been requested.6 requested. The Complaints allege, inter alia, identical "facts" to support the Derivative Action, including refusal of access to the Companies' books and records; "tainted, illegal, improper" shareholder meetings; "inherent conflicts of interest, self-dealing, fraud, deception and breaches of fiduciary responsibility," responsibility, failure to abide by corporate formalities; corporate waste and diversion of the Companies' assets. Separate proceedings will undoubtedly result in duplication of effort, waste of judicial resources, and the possibility of inconsistent rulings. The claims in issue are properly before the court in the Derivative Action, money damages will suffice, and a drastic remedy of dissolution should not be considered. The parties to the Derivative Action are still engaged in document discovery, and not a single deposition has yet proceeded. Resolution of the Derivative Action would necessarily determine multiple claims of purported wrongdoing alleged herein by Petitioners, and will also resolve claims of substantial economic value to the Companies, which would assuredly affect the value and assets of the Companies. The Court should at minimum consolidate the proceedings for discovery and trial. B. Alternatively, And Because Issues of Fact are Present, Discovery Should Occur Prior to Any Evidentiary Hearing on Dissolution Should the Court decline to dismiss the Petition, and also decline to stay this matter or consolidate proceedings, Respondents respectfully request that a discovery schedule be entered that would allow the parties to engage in necessary discovery following the filing of responsive pleadings and prior to the matter being set down for an evidentiary hearing. 6 See Index No /2013: Complaint filed February 8, 2013 (Dkt. 1); Amended Complaint filed April 6, 2013 (Dkt. 62); Second Verified Amended Complaint filed May 7, 2015 (Dkt. 64); Decision and Order dated 7/11/14 by Justice Scarpulla (Dkt. 86); Third Verified Amended & Supplemental Complaint dated July 30, 2014 (Dkt. 87); Verified Answer to Third Verified Amended & Supplemental Complaint and Counterclaims dated August 28, of 29

23 Because a proceeding pursuant to BCL 1104-a is a Special Proceeding, discovery rules are governed by Article 4 of the CPLR 408. See CPLR 408 (leave of the court required for disclosure in a special proceeding). In accordance with the liberal discovery standards set forth in CPLR 3101, courts are empowered to permit paper discovery, and depositions of relevant individuals in connection with dissolution proceedings. In New York, judicial dissolution is not authorized simply because parties no longer get along; judicial dissolution is only authorized where there is evidence of conduct which fairminded people would find harsh, oppressive and therefore objectionable. In re Rosen, 476 N.Y.S.2d 625, (2d Dept. 1984) (reversing for failure to hold hearing on issue of alleged oppressive actions toward complaining shareholders in light of conflicting affidavits and in light of the fact that the corporations in issue continued to thrive). "Section 1104-a [of the Business Corporations Law] was enacted to provide relief to minority stockholders in close corporations who are being treated unfairly by the majority or who are being 'squeezed out' because of 'oppressive' conduct of the majority." Mardikos v. 116 Misc.2d 1028, 1031 (Sup. Ct. Kings Cty. Oct. 20, 1982). Before any relief may be granted an aggrieved minority shareholder, however, the court must first determine whether the allegedly offending conduct on the part of the majority in interest may be deemed "oppressive" within the meaning of the law, such that the extraordinary relief of judicial dissolution is warranted. Id. Indeed, it is nearly axiomatic that New York courts are required to conduct a hearing, pursuant to CPLR 1109, in advance of any grant of a petition for dissolution interposed pursuant to either 1104 or 1104-a, at which disputed questions of fact concerning both the merits of the petition, as well as the appropriate remedy to be granted, are to be addressed of 29

24 "Section 1109 of the [B.C.L.] mandates that the allegations and proofs of the parties be heard and the facts determined with respect to the proposed dissolution." In re Allchester Dev. Co., 34 A.D.2d 110, 111 (2d Dept. 1970) ). At best, Petitioners have set forth a case for dissolution that is clouded by many conflicting issues of fact. See In re Schwen, 154 A.D.2d 601, 546 N.Y.S.2d 429, 430 (2d Dep't 1989) (the existence of issues of fact as to whether judicial dissolution of a corporation is warranted pursuant to BCL 1104-a precludes summary disposition). The issue of whether a hearing is required in such circumstances, i.e. in the presence of unresolved fact issues concerning the allegedly oppressive conduct that formed the basis for a petition), was taken up in In re Kourianos, 175 A.D.2d 823 (2d Dep't 1991). There, the court held that: "although the record establishes that there is disagreement between Olin and the petitioner, a[n] evidentiary hearing pursuant to Business Corporation Law 1109 is required to resolve disputed issues of fact with respect to the merits of the petitioner's application under Business Corporation Law â 1104 and 1104-a and remedy." the appropriate here.8 Id. at Respondents are no less entitled to an evidentiary hearing here. Where courts, even with the best of intentions, have failed to adhere to the procedurally proper order of events, their orders have consistently been reversed for abuse of discretion. See In re Kourianos, 175 A.D.2d 824 (2d Dep't. 1991) (holding that Supreme Court "abused its discretion in granting judicial dissolution without a hearing... pursuant to [B.C.L.] 1109[, which is] required to resolve disputed issues of fact with respect to the merits of petitioner's application under [B.C.L.] 1104-a and the appropriate remedy"); Application of MacDougall, 150 petitioners' A.D.2d 160, (1st Dep't. 1989) (motion court's order directing appraisal of shares and " respondents to purchase them was in error absent prior hearing on the allegations, which included "exclusion qf petitioners from management, refusal to hold meetings, unjustified raises in salaries, refusal to permit inspection qf books and financial records, wasting qf property, appropriate qf corporation qf corporate money for personal use, fashioned" and looting qf corporate assets[,... which] was required before a remedy could be fashioned"). See also Ricci v. First Time Around, Inc.,,112 A.D.2d 794.(4th Dep't. 1985) (reversing Supreme Court and remitting for hearing on grounds that "[i]t was an abuse of discretion to fail to order a hearing pursuant to [B.C.L.] 1109 to resolve disputed dissolution" issues of fact with respect to petitioner's application for judicial dissolution"); In re Allchester Dev. Co., 34 A.D.2d at (remitting proceedings to Special Term for new hearing and new determination on grounds that "denying dissolution" appellants right to introduce evidence at the hearing in opposition to the proposed corporate constituted reversible error). See also, Fakiris v. Gusmar Enterprises, LLC, 54 Misc.3d 1215(A), at *2 (Sup. Ct. Queens Cty. Nov. 21, 2016) (acknowledging that where conflicting allegations of parties to dissolution proceedings exist, a hearing is first required); In re WTB Properties, Inc.,,291 A.D.2d 566, 567 (2d Dep't. 2002) ("[B]ecause there are questions of fact regarding the merits of the petition and the appropriate remedy, the Supreme Court should not have ordered dissolution without conducting a hearing."); In re Steinberg, 249 A.D.2d 551, 552 (2d Dep't. 1998) (holding that of 29

25 Questions of fact exist regarding the reasonable expectations of Petitioners, in terms of financial remuneration and management rights. Petitioners have not been ousted by the Companies, locked out of corporate offices, or cut off from financial gain. Petitioners have not been fired from any roles they previously enjoyed. Petitioners have not been denied the right to vote their shareholder interests. And notwithstanding their contentions otherwise, Petitioners Frank D. and Marion have not been "frozen out" of their Board of Directors seats. Instead Petitioners appear to seek to challenge an alleged lack of participation in management, notwithstanding the fact that three of the Petitioners have performed as Board of Directors members, and four of the Petitioners have never sought to participate in the management of the Companies at all. Petitioners are Second, Third, and even Fourth Generation holders of minority business interests who have obtained, and continue to obtain, significant financial gain. Questions of fact exist as to the motives of Petitioners in bringing the Petition for Dissolution, and whether Petitioners (and namely Frank D.) seek to press dissolution for the purpose of obtaining personal funds from the Companies. Personal disappointment at the financial condition of a corporation does not warrant the granting of an oppression claim or (" dissolution. In re Kemp & Beatley, Inc., 64 N.Y.2d at 73 ("Disappointment alone should not necessarily be equated with oppression."). Questions of fact also exist as to purported salaries, Company payments, and alleged bad acts engaged in by Frank P. and Christina (which allegations are false). Based on the foregoing, Respondents respectfully request that, should the Court be disinclined to grant their Motion to Dismiss the Petition for Dissolution, an order be entered lower court erred in granting petition and directing buy-out without conducting hearing as to allegedly "oppressive actions" by appellants); In re Fancy Windows & Doors Mfg. Corp., 244 A.D.2d.484, (2d Dep't. 1997) (holding that lower court erred on the grounds that "in the present case, in view of the parties' conflicting assertions, the Supreme Court should have held an evidentiary hearing" before granting petition for dissolution, and remitting matter for new hearing and determination) of 29