| Matter of Pappas v Corfian Enters., Ltd. |
| 2010 NY Slip Op 06488 [76 AD3d 679] |
| August 24, 2010 |
| Appellate Division, Second Department |
| In the Matter of Theano Pappas,Appellant-Respondent, v Corfian Enterprises, Ltd., et al., Respondents-Appellants, andTheodoros Kalogiannis, Appellant-Respondent. |
—[*1] Greenfield Stein & Senior, LLP, New York, N.Y. (Norman A. Senior and Elana L. Danzerof counsel), for respondents-respondents-appellants.
In a proceeding pursuant to Business Corporation Law § 1104-a for judicialdissolution of Corfian Enterprises, Ltd., and Epiros Realty, Ltd., (1) the petitioner appeals fromso much of an order of the Supreme Court, Kings County (Battaglia, J.), dated March 20, 2009,as, after a hearing, in effect, denied that branch of the petition which was for judicial dissolutionof Epiros Realty, Ltd., and dismissed that portion of the proceeding, based on the affirmativedefense of lack of standing, (2) Theodore Kalogiannis separately appeals from so much of thesame order as dismissed his cross claim for judicial dissolution of Epiros Realty, Ltd., anddismissed that portion of the proceeding, based on the affirmative defense of lack of standing,and (3) Corfian Enterprises, Ltd., and Paul Fotinos cross-appeal from so much of the same orderas, in effect, struck their affirmative defense that the petitioner and Theodoros Kalogiannis eachlack standing to seek judicial dissolution of Corfian Enterprises, Ltd.
Ordered that on the Court's own motion, the notices of appeal and cross appeal are treated asapplications for leave to appeal and cross-appeal, and leave to appeal and cross-appeal is granted(see CPLR 5701 [c]); and it is further,
Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costsor disbursements.
The Supreme Court conducted, in effect, a nonjury trial with respect to the issue of standing.In reviewing the Supreme Court's findings of fact, this Court's authority "is as broad as that ofthe trial court" and includes the power to "render the judgment it finds warranted by the facts,taking into account in a close case the fact that the trial judge had the advantage of seeing thewitnesses" (Northern Westchester Professional Park Assoc. v Town of Bedford, 60NY2d 492, 499 [1983] [internal quotation marks omitted]; see Campbell v Campbell, 50 AD3d 614 [2008]; O'Brien v [*2]Dalessandro, 43 AD3d 1123 [2007]). In seeking judicialdissolution of Corfian Enterprises, Ltd. (hereinafter Corfian), and Epiros Realty, Ltd. (hereinafterEpiros), it was incumbent upon the petitioner Theano Pappas (hereinafter Mrs. Pappas) and therespondent Theodore Kalogiannis to establish, prima facie, by a preponderance of the evidence,that Mrs. Pappas's late husband, Eleftherios Pappas, and Kalogiannis were each the holders of atleast 20% of the shares of Corfian and Epiros (see Business Corporation Law §1104-a; Shea v Hambros PLC, 244 AD2d 39, 52-53 [1998]; Matter of Jordan v ArvinSigns, 203 AD2d 366 [1994]; Matter of Gunzberg v Art-Lloyd Metal Prods. Corp.,112 AD2d 423, 424-425 [1985]). On this record and in light of the Supreme Court's opportunityto hear and evaluate the credibility of the witnesses, we find no basis to disturb the SupremeCourt's determination that Mrs. Pappas and Kalogiannis each have standing to seek judicialdissolution of Corfian, but that each lack standing to seek judicial dissolution of Epiros.
The remaining contentions of Corfian, Epiros, and Paul Fotinos relating to the issues of thestatute of limitations, laches, and waiver are not properly before this Court (see Amex Assur. Co. v Kulka, 67AD3d 614, 616 [2009]; Katz v Katz, 68 AD2d 536 [1979]). Mastro, J.P., Florio,Belen and Roman, JJ., concur. [Prior Case History: 22 Misc 3d 1113(A), 2009 NY Slip Op50109(U).]