SHORT FORM ORDER Present: SUPREME COURT - STATE OF NEW YORK HON GEOFFREY J O CONNELL Justice MARTIN NIX and MACK MARKOWITZ, INC, TRIAL/IAS, PART 10 NASSAU COUNTY -against- Plaintiff(s), INDEX No 8903/01 KATHLEEN FLESCH, Individually and in her capacity as Executrix of the Estate of Norman Flesch, MOTION DATE: l/4/02 Defendant(s) MOTION SEQ No 4,5 The following papers read on this motion: Order to Show Cause/Affidavit/Exhibits A-N Defendant s Affirmation in Opposition/Affidavits/Exhibits A-O Plaintiffs Affidavit/Exhibits A-C Notice of Cross Motion/Affidavit/Affirmation/Exhibits A-F Plaintiffs Affirmation Plaintiffs Martin Nix and Mack Markowitz, Inc, apply to the Court for an order granting summary judgment declaring that Defendant as Executrix of the Estate of Norman Flesch is required to produce for redemption at a value equal to their book value at the time of decedent s death the decedent s shares in Plaintiff corporation; further declaring that valuation by Samuel Goldstein, PC, the Corporation s accountant is null and void and directing that an inquest be held to determine the appropriate valuation of the shares Defendant Kathleen Flesch, individually and as Executrix of the Estate of Norman Flesch, cross moves for summary judgment declaring that she is the beneficial owner of her late husbands shares
Nix v Flesch Factual Setting Plaintiff Mack Markowitz, Inc operates an Oldsmobile dealership in Hempstead, New York As of August 1,1997, the shareholders in the corporate plaintiff were Plaintiff Martin Nix and Norman Flesch Nix and Flesch entered into a shareholders agreement dated August 1, 1997 which provided in pertinent part: (6) (a) In the event of the death of either stockholder, the estate of the deceased stockholder shall be deemed to offer for sale to the corporation, all of the capital stock of the corporation, or any interest therein, owned by the deceased stockholder, at the time of his death, and the corporation shall be deemed to accept said offer, and shall redeem said stock out of its surplus In the event the corporation does not have sufficient surplus to effectuate such purchase, it may borrow such monies as required, from third parties, or utilize its weekly net earnings to fund such purchases The parties further agree that the corporation shall take such steps as may be permitted by law to restructure the capital of the corporation to create additional surplus, for the purpose of this paragraph *** (d) Anything herein contained to the contrary notwithstanding, the surviving stockholder may purchase the stock of the selling stockholder in lieu of redemption by the corporation, (7) (a) The purchase price for the stock transferred pursuant to the provisions of paragraph 6 hereof, shall be set by the corporation s accountants at a price equal to its book value at the time of death, * Norman Flesch died on July 28,200O leaving a widow, Defendant Kathleen Flesch, who is the Executrix of his estate On September 19, 2000 the attorneys then representing Plaintiffs sent a letter to Defendant which stated, inter alia; Please be advised that, in accordance with the Agreement, the Company s accountants are determining the book value of the assets in order to fairly determine the value of decedent s shares in accordance with the Agreement Thereafter, Stuart Goldstein, a certified public accountant, sent a letter dated Jan 12,2001, to the attorneys for the Estate of Norman Flesch which stated in part; Pursuant to 2
Nix v Flesch the Shareholders Agreement we hereby set the book value of Mack Markowitz, Inc at $282,784 Based upon this value and the percentage ownership on December 3 1,1999 corporate tax return: Flesch 86% and Nix 14% The amount allocable to Flesch would be $237,547 By letter dated Jan 25,200 1, Plaintiffs attorneys tendered a Mack Markowitz corporate check in the amount of $237,547 to the Estate of Norman Flesch Counsel for the Estate rejected and returned the tendered check on the following day Subsequent to Norman Flesch s death General Motors announced the phasing out of the Oldsmobile brand which will have financial consequences for the dealership corporation Discussion Defendant contends shareholders agreement and that the purported tender of Jan 25, 2001 was not in compliance with the was a nullity The provision of the Shareholders Agreement at issue is (8): C The purchase of redemption price of the capital stock, determined in accord with paragraph 7 of this agreement, shall be paid in the following manner: (a) [Not applicable] i (b) pot applicable] (c) The balance derived after (a) - (b) shall be paid in the following manner: (i) In full within sixty (60) days; or (ii) Twenty-five (25%) of the sum within sixty (60) days *** (e) Upon receipt by the selling shareholder, or his estate, as the case may be, of the redemption price in cash or promissory note, as hereinabove provided, the selling stockholder, or his legal representative, as the case may be, shall endorse and deliver the shares Specifically Defendant contends that the tender was untimely and was not made in cash or promissory note In its prior decision dated Oct 19,200l this Court has already construed the Shareholder s Agreement as requiring that, where the determination is made that the Corporation will redeem the stock of a deceased shareholder, payment is due within sixty days of the determination by, the Corporation s Accountant 3 --- ~--- - ~ --
Nix v Flesch establishing the redemption price Here a tender was made within sixty days after the determination by the Corporation s Accountant Defendant contends that the tender was a nullity because the determination made by Stuart Goldstein, the Corporation s Accountant was erroneous Defendant correctly points out that Plaintiffs also contend the valuation was erroneous, but Plaintiffs contend that the tender nevertheless satisfied the requirements of the Shareholder s Agreement Defendant offers no case law or statutory authority in support ofher claim that the tender of the sum calculated by the corporation s accountant would void Plaintiff Mack Markowitz s right and obligation to redeem the decedent s shares if it was subsequently determined that the calculation was erroneous The Shareholders Agreement does not contemplate the possibility that the shares of a decedent would not be redeemed Paragraph 6 (a) mandates that the Corporation redeem out of its surplus It further provides that; In the event the corporation does not have sufficient surplus to effectuate such purchase, it may borrow Paragraph 8 (d) addresses the contingency that the corporation might not have sufficient surplus to make a redemption payment when due In such eventuality a pro rata redemption is mandated In such event, the remaining stockholder has the option of purchasing the unredeemed shares The Court concludes that the tender of the book value redemption price as determined by the Corporation s Accountant was not a nullity entitling Defendant to retain the decedent s shares That does not mean, however, that Defendant is required to accept or that Plaintiff Corporation is required to pay $237,547 as the redemption price In analogous circumstances, courts have found material issues of fact requiring plenary resolution with respect to the determination of book value (Moroze & Sherman, P C v Moroze, 221 Ad2d 160 [ 1 Dept, 19951; Diamond & Golomb, PC v Diamond, 189 Ad2d 722 [l Dept, 19931; see generally, Lewis v Vladeck, Elias, Vladeck, Zimny & Engelhard, PC, 57 NY2d 975 [1982]) Defendant s On the reasonableness of this construction the Court notes that, even though clearly inapplicable to this case, Section 15 10 of the Business Corporation Law which mandates the redemption by a professional corporation of the shares of a deceased shareholder allows a period of six months after appointment of the executor or administrator for redemption 4
Nix v Flesch contention that discovery is required in order to fully litigate the valuation is well founded (Moroze & Sherman, P C v Moroze, supra; Diamond h Golomb, P C v Diamond, supra) The Court further concludes that the fact that the tender was by corporate check rather than in cash or promissory note does not render it a nullity More than thirty-five days remained of the sixty day period for tender of the redemption price when the corporate check was delivered Defendant could have delayed delivery of the stock until the check cleared or otherwise satisfied itself that the funds would have been realized (See, Fender v Prescott, 10 1 Ad2d 4 18 [ 1 Dept, 19841) Plaintiffs motion for summary judgment is granted to the extent of the issues determined on this application Upon the Plaintiffs posting an undertaking in the amount of $500,00000, within 30 days of the date of this Order, Defendant shall deliver within 20 days of such a posting, the shares in question to a mutually agreeable escrow agent to be held pending a final determination of the redemption price and payment thereof The cross motion for reverse summary judgment is denied The parties are directed to appear on February 25,2002 for a preliminary conference (see 22 NYCRR 20212) before the undersigned to schedule the exchange of all further discovery This directive with respect to the date of the conference is subject to the right of the undersigned to fix an alternative date should scheduling require Counsel may execute and return a comuleted original enclosed Preliminary Conference Order for approval by the undersigned no later than 10 days prior to this scheduled date This will obviate the need for a personal appearance The Court will set the date for certification and trial and return a signed copy to counsel Counsel for the movant shall serve a copy of this Order on all parties A copy of the Order with affidavits of service shall be served on the Clerk of the Court within 8 days after entry Counsel for all parties are reminded that this matter has been assigned to the Commercial Division of the Supreme Court of Nassau County, and directed to follow the Rules of this Division with respect to all further applications It is, SO ORDERED 5 ljan 30 2002