| McCully v Jersey Partners, Inc. |
| 2009 NY Slip Op 02297 [60 AD3d 562] |
| March 26, 2009 |
| Appellate Division, First Department |
| Robert McCully, Appellant, v Jersey Partners, Inc.,Respondent. |
—[*1] Greenberg Traurig, LLP, New York (Simon Miller of counsel), for respondent.
Order, Supreme Court, New York County (Bernard J. Fried, J.), entered February 8, 2008,which granted defendant's motion to dismiss the complaint, unanimously modified, on law, themotion denied with respect to the claim for an additional tax dividend for 2000 resulting fromdefendant's filing of an amended return for that year, that claim reinstated, and otherwiseaffirmed, without costs.
Plaintiff's claim for a tax dividend for 2001 was properly dismissed because, by exercisinghis right to a fair-value appraisal of his shares in defendant upon consummation of the corporatereorganization on November 30, 2001, plaintiff ceased to have any rights as a shareholder exceptthe right to the fair value of his shares (Business Corporation Law § 623 [e], [k]; Breedv Barton, 54 NY2d 82, 85 [1981]). Any contractual right to payment of that dividendpursuant to the stockholders agreement was dependent on his status as a shareholder, which herenounced. The sole exception to plaintiff's exclusive remedy of an appraisal of the fair value ofhis shares is the right to assert a claim for equitable relief grounded in allegations of unlawful orfraudulent conduct by the corporation as to him (Business Corporation Law § 623 [k];Alpert v 28 Williams St. Corp., 63 NY2d 557, 568 [1984]), which is not what plaintiffalleges here.
The court erred, however, in dismissing the claim for the additional tax dividend for 2000. Adismissal motion based on documentary evidence (CPLR 3211 [a] [1]) "may be appropriatelygranted only where the documentary evidence utterly refutes plaintiff's factualallegations, conclusively establishing a defense as a matter of law" (Goshen v MutualLife Ins. Co. of N.Y., 98 NY2d 314, 326 [2002] [emphasis added]; accord 511 W. 232ndOwners Corp. v Jennifer Realty Co., 98 NY2d 144, 152-153 [2002]). The tax returns andschedules submitted by defendant, which showed no decrease in either defendant's overall taxliability or plaintiff's proportionate share of that liability, still failed to establish conclusively thatplaintiff's 2000 tax liability did not increase as a result of defendant's filing of its amended 2000tax return.[*2]
We have considered plaintiff's remaining contentions andfind them unavailing. Concur—Andrias, J.P., Gonzalez, Buckley and Acosta, JJ.[See 18 Misc 3d 1138(A), 2008 NY Slip Op 50341(U).]