| Matter of Superior Vending, LLC (Tal\MPlotkin) |
| 2010 NY Slip Op 02801 [71 AD3d 1153] |
| March 30, 2010 |
| Appellate Division, Second Department |
| In the Matter of the Dissolution of Superior Vending, LLC,Respondent. Arik Tal, Appellant; Peter Plotkin, Respondent. |
—[*1] Wachtel & Masyr, LLP, New York, N.Y. (Jeffrey T. Strauss of counsel), forrespondents.
In a special proceeding pursuant to Limited Liability Company Law § 702, inter alia,to dissolve Superior Vending, LLC, the petitioner, Arik Tal, appeals, as limited by his brief,from so much of a judgment of the Supreme Court, Westchester County (Scheinkman, J.),entered July 23, 2008, as, upon a decision of the same court entered June 6, 2008, made after ahearing, directed the respondent Peter Plotkin to pay the principal sum of only $256,549.43 topurchase his membership interest in Superior Vending, LLC, and denied that branch of thepetition which was for an accounting and interim distributions.
Ordered that the judgment is affirmed insofar as appealed from, with costs.
In 1997 Peter Plotkin incorporated a vending machine company that distributed beveragesand snacks to businesses, schools, and hospitals throughout the New York City metropolitanarea. In 2000 Arik Tal helped Plotkin to acquire a second vending machine company.Specifically, Tal paid a down payment in the sum of $170,000 and executed a promissory notepursuant to which he agreed to pay the remaining balance of the purchase price in monthlyinstallments. Although Plotkin and Tal formed a limited liability company known as SuperiorVending, LLC (hereinafter Superior), to operate the business, they never executed an operatingagreement.
Plotkin and Tal, in effect, terminated their business relationship in November 2002.Although Tal initially commenced an action in March 2003, inter alia, to dissolve Superior, hefailed to pursue the dissolution claim. That action was marked off the trial calendar in May 2004,and dismissed in May 2005. Meanwhile, Plotkin continued to operate and expand the vendingmachine business. In June 2007 Tal commenced the instant proceeding pursuant to LimitedLiability Company Law § 702, inter alia, to dissolve Superior and recover his share ofSuperior's assets and interim distributions.
Although Tal and Plotkin consented to the dissolution of Superior, they disagreed about thedistribution of the assets. After a six-day hearing in March 2008, the Supreme Court determined,based on Limited Liability Company Law § 704 (c), that Tal was entitled to recover hisinitial investment in the amount of $170,000, plus $99,320.86 for the 26 payments that he madeon the promissory note. The Supreme Court reduced Tal's recovery by the sum of $12,771.43,upon finding in favor of Plotkin on Plotkin's counterclaim for 50% of the money that Tal hadmisappropriated from Superior.[*2]
Although the Limited Liability Company Law does notexpressly authorize a buyout in a dissolution proceeding, the Supreme Court properlydetermined that the most equitable method of liquidation in this case was to provide Plotkin aperiod of 45 days within which to purchase all of Tal's right, title, and interest in Superior for theprincipal sum of $256,549.43, plus 9% interest from November 22, 2002 (see Lyons vSalamone, 32 AD3d 757, 758 [2006]). This approach, which excluded an award of interimdistributions made by Superior after November 2002, allowed Tal to recover his investment plusa reasonable return on that investment with respect to his membership interest in Superior, whichterminated in November 2002.
Tal failed to establish his entitlement to an accounting. Fisher, J.P., Angiolillo, Belen andLott, JJ., concur. [Prior Case History: 20 Misc 3d 1103(A), 2008 NY Slip Op51205(U).]