Lg: MSSt.MarksAssets,lac.v. Elliot Sohayegh(Nteof Appeal)6.22.2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------------X X ST. MARKS ASSETS, INC., Index No. 653682/2016 -against- Plaintiff, NOTICE OF APPEAL ELLIOT SOHAYEGH, --------------------------------------------------------------------X Defendant. X PLEASE TAKE NOTICE that the above-named Plaintiff, ST. MARKS ASSETS, INC., hereby appeals to the Appellate Division of the Supreme Court of the State of New York, in and for the First Department, from an order of the Hon. Lynn R. Kotler, J.S.C., entered in the office of the Clerk of the County of New York in the above- entitled action on June 18, 2018, which denied plaintiff's motion for summary judgment in favor of Plaintiff and against Defendant Elliot Sohayegh declaring that each of the two contracts of sale between the parties is void and of no force or effect; and to dismiss Defendant's counterclaim for specific performance. This appeal is taken from each and every part of that order as well as the whole thereof. Dated: New York, New York June, 2018 Respectfully submitted, THE ABRAMSON LAW GROUP, PLLC By: > Howard Wintner, Esq. Attorneys for Plaintiff 570 Lexington Avenue, 23rd PlOOr New York, New York 10022 (212) 686-4401 1 of 6
To: THE PRICE LAW FIRM, LLC Attorneys for Defendant 1115 Broadway, Suite 1053 New York, New York 10010 (212) 675-1125 New York County Clerk New York County Supreme Courthouse 60 Centre Street New York, New York 10007 2 2 of 6
Lg: MS St. Marks Assets, Inc. v. Elliot Sohayegh Pre-Argument Statement 6.22.18 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT -------------------------------------------------------------------X ST. MARKS ASSETS, INC. -against- Plaintiff, Index No. 653682/2016 PRE-ARGUMENT STATEMENT ELLIOT SOHAYEGH, Defendant. --------------------------------------------------------------------X X 1. Title of the Action: St. Marks Assets, Inc., Plaintiff -against- Elliot Sohayegh, Defendant. 2. Full Names of Original Parties St. Marks Assets, Inc., Plaintiff and Any Change in the Parties: Elliot Sohayegh, Defendant There has been no change in the parties. 3. Name, Address and Telephone The Abramson Law Group, PLLC 23"1 Number of Counsel for Appellant: 570 Lexington Avenue, 23 Floor New York, New York 10022 (212) 686-4401 4. Name, Address and Telephone The Price Law Firm, LLC Number of Counsel for Respondent: 1115 Broadway, Suite 1053 New York, New York 10010 (212) 675-1125 5. Court and County from which Supreme Court, New York County Appeal is Taken: 6. Nature and Object of the Action: Plaintiff seeks: (1) a declaratory judgment declaring that two contracts of sale between the parties are void and of no force or effect; and (2) an order dismissing Defendant's counterclaim for specific performance. 3 of 6
7. Result Reached in the Court Below: The trial court denied Plaintiff's motion for an order pursuant to CPLR 3212, granting it summary judgment on its claim for a declaratory judgment declaring that two contracts of sale between the parties are void and of no force or effect, and dismissing Defendant's counterclaim for specific performance. 8. Grounds for Seeking Reversal: The trial court erred in denying the motion for summary judgment inasmuch as, inter alia, the contracts of sale at issue are void since the sale was of all of the assets of the plaintiff corporation, not made in the usual or regular course of the business actually conducted by Plaintiff, and was not approved by a vote of two thirds of its shareholders as required by BCL 909(a). 9. Related Actions or Appeals Pending: None. Dated: New York, New York June 44. 2018 Respectfully Submitted, Howard Wintner, Esq. The Abramson Law Group, PLLC Attorneys for Plaintiff 570 Lexington Avenue, New York, New York 10022 (212) 686-4401 23rd 23 PlOOr To: The Price Law Firm, LLC Attorneys for Defendant 1115 Broadway, Suite 1053 New York, New York 10010 (212) 675-1125 New York County Clerk New York County Supreme Courthouse 60 Centre Street New York, New York 10007 2 4 of 6
NYSCEF (FILED: DOC. NEW NO. 158 YORK COUNTY CLERK 06/21/2018 04 INDEX :16 NO. 653682/2016 P1d RECEIVED NYSCEF: 06/26/2018 FILED:,EbÌ ÑEW EORK COUNTY CLERK 0 E 0. 653 2 ÓJ) 3' 6/18/2018j NYSCEF DOC. NO. 156 RECEIVED NYSCEF: 06/20/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON.LYNN R. KOTLER, J.S.C. PART 8 ST. MARKS ASSETS, INC. INDEX NO. 653682/I6 MOT. DATE - v - ELLIOT SOHAYEGH MOT. SEQ. NO. 007 The following papers were read on this motion to/for.summary siimma~rv judgment Notice of Motion/Petition/O.S.C. - Affidavits - Exhibits NYSCEF DOC No(s). Notice of Cross-Motion/Answering Affidavits - Exhibits NYSCEF DOC No(s). Replying Affidavits NYSCEF DOC No(s). In this declaratory judgment action, plaintiff again moves for summary judgment and a declaration that two contracts of sale between the parties are void and of no force or effect as well as dismissal of defendant's counterclaim for specific performance. Defendant opposes the motion. Issue has been joined but note of issue has not yet been filed. The motion is denied for the reasons that follow. On a motion for summary judgment, the proponent bears the initial burden of setting forth evidentiary facts to prove a prima facie case that would entitle it to judgment in its favor, without the need for a trial (CPLR 3212; Winegrad v. NYU Medical Center, 64 NY2d 851 [19851; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). The party opposing the motion must then come forward with sufficient evidence in admissible form to raise a triable issue of fact (Zuckerman, supra). If the proponent fails to make out its prima facie case for summary judgment, however, then its motion must be denied, regardless of the sufficiency of the opposing papers (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986] ; Ayotte v. Gervasio, 81 NY2d 1062 [1993]). Granting a motion for summary judgment is the functional equivalent of a trial, therefore it is a drastic remedy that should not be granted where there is any doubt as to the existence of a triable issue (Rotuba Extruders v. Ceppos, 46 NY2d 223 [19771). The court's function on these motions is limited to finding," determination" "issue not "issue ( Sillman v. Twentieth Century Fox Film, 3 NY2d 395 [1957]). This case involves the sale of plaintiffs properties located at 28 and 30 St. Mark's Place, New York, New York for over $24,000,000 and $20,000,000, respectively. Defendant is the purchaser. Plaintiff is owned by two families, the Dardashtian Family and the Gilardian Family. Hashim Dardashtian is president and votes his family's 50% interest, and Robert Gilardian is vice-president and votes his family's 50% interest. In 2015, Dardashtian executed the contracts of sale for the properties, which included a rider that / Dated: HON. LYNN R. KOTLER, J.S.C. 1. Check one: I7 CASE DISPOSED I[ NON-FINAL DISPOSITION 2. Check as appropriate: Motion is OGRANTED ENIED 2 GRANTED IN PART O OTHER 3. Check if appropriate: OSETTLE ORDER 0 SUBMIT ORDER 0 DONOT POST 0 FIDUCIARY APPOINTMENT O REFERENCE Page 1 of 2 1 of 2 2 of 3 5 of 6
NYSCEF FILED: DOC. NEW NO. 158 YORK COUNTY CLERK 06/21/2018 04 INDEX NO. :16 653682/2016 P1 RECEIVED NYSCEF: 06/26/2018 653Ê22 LÓ : ÑÈW YORK COUNTY CLERK 06/18 E. 31 /2018) NYSCEF DOC. NO. 156 RECEIVED NYSCEF: 06/20/2018 expressly stated plaintiff did not need the permission or consent of the remaining members of the plaintiff to complete the transaction. Here, plaintiff seeks relief on the basis that the contracts of sale are void and of no force and effect as a matter of law under BCL 909[a], which requires approval of stockholders of corporate acts such as sale of its property (see Petition of McKay, 17 AD2d 299 [1st Dept 1962]). The pur- extraordinary pose of the statute is to protect the interests of minority shareholders (Bear Pond Trail, LLC v. American Tree Co., Inc., 61 AD3d 1199 [3d Dept 2009]). Plaintiff's motion must be denied for the reasons that follow. Even if plaintiff had met its burden on this motion, defendant has raised a triable issue of fact as to whether the sale was approved by both families. Defendant maintains that Gilardian knew about the proposed sale and was involved and represented by counsel who negotiated the terms of the sale. Defendant claims that it was only when Gilardian learned that defendant was the purchaser, after the contracts of sale were fully executed, that Gilardian feigned lack of consent. While there is no dispute that two-thirds of plaintiffs shareholders did not formally vote at a meeting to approve the contracts, given the lack of any corporate formalities by the plaintiff, the court cannot resolve this disputed fact in plaintiff's favor. BCL 909[a] was not intended to permit a corporation to avoid its contractual obligations (see i.e. Texas v. Z. 4 M. Independent Oil Co., 156 F2d 862 [2d Cir 1946] [In the context of the predecessor statute to BCL 909[a], "shareholders may not complain of any contract of which they have individually approved regardless of the absence of statutory formallties"). Further, the court finds that plaintiff has not established that it is not in the business of selling real estate. Indeed, defendant characterizes plaintiffs principals as "heavy-hitters in the world of Manhattan estate." real For at least these reasons, the motion is denied. CONCLUSION In accordance herewith, it is hereby: ORDERED that the motion for summary judgment is denied. Any requested relief not expressly addressed herein has nonetheless been considered and is hereby expressly rejected and this constitutes the decision and order of the court. Dated: f/ l So Ordered: New Yo k, N w York.- Hon. Lynn R. Kotler, J.S.C. Page 2 of 2 2 of 2 3 of 3 6 of 6