Opinion
2014-05-22
THEATRE DISTRICT REALTY CORP., Plaintiff–Respondent, v. Ilana APPLEBY, Defendant–Appellant.
Sargent, Sargent & Jacobs, LLC, New York (Hale C. Sargent of counsel), for appellant. Markewich and Rosenstock, New York (Lawrence M. Rosenstock of counsel), for respondent.
Sargent, Sargent & Jacobs, LLC, New York (Hale C. Sargent of counsel), for appellant. Markewich and Rosenstock, New York (Lawrence M. Rosenstock of counsel), for respondent.
RENWICK, J.P., MANZANET–DANIELS, FEINMAN, GISCHE, JJ.
Order, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered on or about August 22, 2013, which granted plaintiff's motion for summary judgment declaring that the sale of its building does not require the consent of a super-majority of its shareholders pursuant to Business Corporation Law (BCL) § 909(a), and so declared, unanimously reversed, on the law, with costs, the motion denied, and it is declared that the sale of the building requires the consent of a super-majority of the shareholders pursuant to BCL § 909(a).
BCL § 909(a) governs the disposition of all or substantially all of a corporation's assets, “if not made in the usual or regular course of the business actually conducted by such corporation.” Since plaintiff has never been engaged in the business of selling real estate, the sale of its building would not be made in the regular course of the business it “actually conduct [s]” ( see Matter of McKay v. Teleprompter Corp., 19 A.D.2d 815, 243 N.Y.S.2d 591 [1st Dept.1963], appeal dismissed13 N.Y.2d 1058, 246 N.Y.S.2d 34, 195 N.E.2d 762 [1963];Vig v. Deka Realty Corp., 143 A.D.2d 185, 531 N.Y.S.2d 633 [2d Dept.1988], lv. denied73 N.Y.2d 708, 540 N.Y.S.2d 1003, 538 N.E.2d 355 [1989] ).