| Matter of McKeown (Image Collision, Ltd.) |
| 2012 NY Slip Op 03016 [94 AD3d 1445] |
| April 20, 2012 |
| Appellate Division, Fourth Department |
| In the Matter of Rodney J. McKeown, Holder of Fifty Percent ofAll Outstanding Shares of Image Collision, Ltd., Respondent-Appellant, for the Dissolution ofImage Collision, Ltd., a Domestic Business Corporation, Appellant-Respondent. (Proceeding No.1.) Paul Trinkwalder, Individually and as a Shareholder of Image Collision, Ltd. and Suing in theRight of Image Collision, Ltd., Appellant-Respondent, v Rodney J. McKeown,Individually and as a Shareholder of Image Collision, Ltd. and Doing Business as RJMAutomotive, Respondent-Appellant. (Action No. 1.) |
—[*1] Law Offices of Jon Louis Wilson, Lockport (Jon Ross Wilson of counsel), forpetitioner-respondent-appellant and defendant-respondent-appellant.
Appeal and cross appeal from an order of the Supreme Court, Niagara County (Ralph A.Boniello, III, J.), dated March 17, 2011. The order, inter alia, granted the application of Rodney J.McKeown for dissolution.
It is hereby ordered that said cross appeal is unanimously dismissed insofar as it concerns thedisqualification of an attorney from representing respondent-plaintiff in the future and the orderis modified on the law by providing that the interest shall run from the date of the filing of thedissolution petition, and as modified the order is affirmed without costs in accordance with thefollowing memorandum: Petitioner-defendant Rodney J. McKeown, the petitioner in proceedingNo. 1 and the defendant in action No. 1 (petitioner), commenced proceeding No. 1 pursuant toBusiness Corporation Law § 1104-a, seeking the dissolution of [*2]Image Collision, Ltd. (ICL), a closely held corporation owned 50%by petitioner and 50% by Paul Trinkwalder, the respondent in proceeding No. 1 and the plaintiffin action No. 1 (respondent). Respondent commenced action No. 1 against petitioner, seeking,inter alia, damages for money allegedly taken from ICL by petitioner and business opportunitiesof ICL allegedly converted by petitioner. The proceeding and action were consolidated for trial.Respondent appeals and petitioner cross-appeals from an order that, inter alia, granted petitioner'sapplication for dissolution, awarded respondent the continued use of ICL's business, awardedpetitioner 70% of the value of the corporation, and dismissed the complaint in respondent'saction.
Contrary to respondent's contention on his appeal, "Supreme Court's valuation of [the]Corporation and of petitioner's shares is supported by the evidence in the record, and respondent'scontrary interpretations of fact and credibility do not warrant disturbing the court'sdeterminations . . . 'The determination of a fact-finder as to the value of a business,if it is within the range of testimony presented, will not be disturbed on appeal where valuation ofthe business rested primarily on the credibility of expert witnesses and their valuation techniques'" (Matter of Penepent Corp. [appeal No. 11], 198 AD2d 782, 783 [1993], lvdenied 83 NY2d 797 [1994]; see Matter of F.P.D. Realty Corp., 267 AD2d 111, 112[1999]; Matter of North Star Elec. Contr.—N.Y.C. Corp., 174 AD2d 373, 373-374[1991], lv denied 79 NY2d 752 [1991]). Also contrary to respondent's contention, hefailed to establish that petitioner engaged in oppressive behavior within the meaning of BusinessCorporation Law § 1104-a before respondent denied petitioner access to ICL's equipmentand accounts by locking petitioner out of the corporation's premises and changing all the locksand passwords (see generally Matter of Kemp & Beatley [Gardstein], 64 NY2d 63, 72-73[1984]). Although respondent established that petitioner set up another business in 1998, theevidence also supports the court's conclusion that petitioner did so in response to respondent'soppressive acts, including buying the premises upon which ICL conducted business and thenraising the rent to siphon away corporate profits, thereby depriving petitioner of his reasonableexpectation that he would receive one half of ICL's earnings. The evidence also supports thecourt's further conclusion that, in 2002, respondent completely locked petitioner out of thebusiness without compensation for his part of the corporation's value. Conversely, the evidencefails to support respondent's contention that petitioner's other business resulted in any diminutionin the value of ICL.
Respondent did not object at trial to the qualifications of petitioner's financial expert, acertified public accountant with more than 50 years of experience that included valuingbusinesses, and he therefore failed to preserve for our review his contention that the expert is notqualified to valuate the business (seegenerally Matter of Alexis Marie P., 45 AD3d 458, 459 [2007], lv denied 10NY3d 705 [2008]; Koffler v Biller, 262 AD2d 150, 151 [1999]; Smith v City of NewYork, 238 AD2d 500, 500 [1997]).
With respect to the cross appeal, we agree with petitioner that the court, in directing thatinterest accrue on the award, should have directed that the interest run from the date of the filingof the petition (see Matter of Whalen v Whalen's Moving & Stor. Co., 234 AD2d 552,554 [1996]; see generally Matter of Pace Photographers [Rosen], 71 NY2d 737, 748[1988]). We therefore modify the order accordingly. Petitioner further contends that the attorneywho previously represented ICL should be disqualified from representing respondent in thefuture. "Where, as here, 'the rights of the parties cannot be affected by the determination of [the]appeal,' the appeal must be dismissed as moot" (Matter of Mattar v Heckl, 77 AD3d 1390, 1391 [2010], quotingMatter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]). Thus, even assuming,arguendo, that petitioner preserved that contention for our review, we nevertheless dismiss thecross appeal insofar as it seeks that relief.
We have considered the remaining contentions of the parties and conclude that they are [*3]without merit. Present—Scudder, P.J., Smith, Fahey andSconiers, JJ.