| Estate of Essig v 5670 58 St. Holding Corp. |
| 2008 NY Slip Op 03582 [50 AD3d 948] |
| April 22, 2008 |
| Appellate Division, Second Department |
| Estate of Anna K. Essig, Deceased, et al.,Respondents, v 5670 58 Street Holding Corp. et al., Appellants, et al.,Defendant. |
—[*1] Thomas M. Lancia, PLLC, New York, N.Y. (Korinna M. Selstad of counsel), forrespondent.
In an action, inter alia, for a judgment declaring that the plaintiffs are the owners of 225shares of the capital stock of the defendant 5670 58 Street Holding Corp., the defendants 5670 58Street Holding Corp., Lorraine Angelillo, and Sandra Vaichunas appeal, as limited by their brief,from so much of (1) an order of the Supreme Court, Queens County (Weiss, J.), dated January25, 2007, as granted that branch of the plaintiffs' motion which was for summary judgment ontheir cause of action for a judgment declaring that the plaintiffs are the owners of 225 shares ofthe capital stock of the defendant 5670 58 Street Holding Corp., and denied their cross motion tocompel discovery and (2) an order of the same court dated April 16, 2007, as denied that branchof their motion which was for leave to renew their opposition to that branch of the plaintiffs'motion which was for summary judgment on their cause of action for a declaratory judgment.
Ordered that the orders are affirmed insofar as appealed from, with one bill of costs, and thematter is remitted to the Supreme Court, Queens County, for the entry of a judgment declaringthat the plaintiffs are the owners of 225 shares of the capital stock of the defendant 5670 58Street Holding Corp.
The plaintiffs (the estate of Anna K. Essig and the executor of the estate of Anna K. Essig)made a prima facie showing of their entitlement to judgment as a matter of law on their cause ofaction for declaratory relief by submitting two stock certificates indicating that, at the time of herdeath, Anna K. Essig was the owner of 225 shares of the capital stock of the defendant 5670 58Street Holding Corp. (hereinafter the Corporation). The stock certificates are more than 30 yearsold, are free from any indication of fraud or invalidity, and were discovered by the plaintiff LeroyJ. Essig [*2]amongst the personal records of Anna K. Essig(hereinafter Anna) after her death. Under such circumstances, the stock certificates areself-authenticating pursuant to the ancient document rule (see Szalkowski v AsbestosprayCorp., 259 AD2d 867, 868 [1999]; Tillman v Lincoln Warehouse Corp., 72 AD2d40, 44 [1979]) and were properly received by the Supreme Court as proof of the facts statedtherein (see Tillman v Lincoln Warehouse Corp., 72 AD2d at 45). Moreover, contrary tothe contention of the Corporation and the defendants Lorraine Angelillo and Sandra Vaichunas(hereinafter collectively the defendants) that the plaintiffs failed to establish that the stockcertificates were validly issued by the Corporation in exchange for consideration paid for byAnna, the stock certificates themselves are "the written evidence of those facts" (UnitedStates Radiator Corp. v State of New York, 208 NY 144, 149 [1913]; see Bandes vHarlow & Jones, Inc., 826 F Supp 700, 708 [1993]; Matter of M. Kraus, Inc., 229AD2d 347, 348 [1996]; Matter of Rappaport, 110 AD2d 639, 641 [1985]).
In opposition to that branch of the plaintiffs' motion which was for summary judgment ontheir cause of action for declaratory relief, the defendants failed to raise a triable issue of fact(see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). While the Supreme Court shouldhave considered the evidence submitted by the defendants in their opposition papers that wouldhave been barred at trial under CPLR 4519 (see Coury v Arcuri, 262 AD2d 268 [1999]),that evidence, along with the remainder of the evidence submitted by the defendants, wasinsufficient to raise a triable issue of fact as to the validity of the stock certificates or as to theplaintiffs' ownership of 225 shares of the Corporation's stock. Thus, that branch of the plaintiffs'motion which was for summary judgment on their cause of action for declaratory relief wasproperly granted.
The Supreme Court properly denied the defendants' cross motion to compel discovery (see Matuszak v B.R.K. Brands, Inc., 23AD3d 628 [2005]).
The Supreme Court properly denied that branch of the defendants' motion which was forleave to renew (see Michael StachnikEnters., Inc. v Hereford Dev. Corp., 38 AD3d 859, 860 [2007]; Elder v Elder, 21 AD3d 1055[2005]).
Since this is, in part, a declaratory judgment action, we remit the matter to the SupremeCourt, Queens County, for the entry of a judgment declaring that the plaintiffs are the owners of225 shares of the capital stock of the Corporation (see Lanza v Wagner, 11 NY2d 317,334 [1962], appeal dismissed 371 US 74 [1962], cert denied 371 US 901 [1962]).Fisher, J.P., Ritter, Dillon and McCarthy, JJ., concur. [See 14 Misc 3d 1225(A), 2007 NYSlip Op 50170(U).]