Opinion
April 1, 1976
Order, Supreme Court, New York County, entered December 10, 1975, confirming a report of Special Referee McNabb, unanimously affirmed. Respondents shall recover of appellant $60 costs and disbursements of this appeal. We are in agreement with the findings of fact of the Special Referee, confirmed by Special Term, that the petitioner corporation frustrated the respondents in the exercise of their rights as dissenting shareholders. We hold therefore that, in the case at bar, there were sufficient special circumstances shown to warrant a departure from the strict requirements of subdivision (a) of section 623 Bus. Corp. of the Business Corporation Law. We further find that the appraisal of the stock directed by Special Term was appropriate. While market price of an actively traded and listed stock is a factor in determining value, it is not the controlling factor and other circumstances having a direct bearing on the market price, such as investment value and asset value, are also to be considered (cf. Matter of Kaufmann, Alsberg Co. v Green Co., 15 A.D.2d 468). In the case at bar, the disparate values assigned to the shares by the opposing parties warrant an appraisal, at which time expert testimony can be taken describing the basis for the values assigned. The court will then be in a position to determine the fair value of the shares involved (cf. Matter of Endicott Johnson Corp. v Bade, 45 A.D.2d 407).
Concur — Stevens, P.J., Markewich, Capozzoli, Lane and Nunez, JJ.