Bingham v. Wells, Rich, Greene, Inc.

34 A.D.2d 924 | N.Y. App. Div. | 1970

Order entered February 2, 1970, denying defendant’s motion for summary judgment as to the first cause of action unanimously affirmed, without costs and without disbursements, and without prejudice to renewal after discovery proceedings have been completed. We agree that the portion of the employment contract pleaded by plaintiff involving a transfer of title to shares of stock for a price is a sale of securities within the purview of section 8-319 of the Uniform Commercial Code and is not enforceable unless “ there is some writing signed by the party against whom enforcement is sought or by his authorized agent or broker sufficient to indicate that a contract has been made for sale of a stated quantity of described securities at a defined or stated price”. (Uniform Commercial Code, § 8-319; Burnside & Co. v. Havener Securities Corp., 25 A D 2d 373; see, also, comment to § 2-304, 8B Bender’s Forms UCC, p. 169.) Plaintiff has demonstrated that facts essential to justify opposition may exist and he should be afforded the opportunity to avail himself of disclosure devices (CPLR 3212, subd. [f ]). The instant motion was made immediately subsequent to joinder of issue without giving plaintiff an opportunity for disclosure of proof peculiarly within defendant’s knowledge of his allegations, undenied by defendant, of the existence of intra-office memoranda approving and confirming the contract of employment and sale of the securities by defendant’s Board of Directors. If plaintiff cannot establish by disclosure proceedings the existence of a writing approving or confirming the agreement to sell the stock and approval thereof by defendant’s board of directors (Business Corporation Law, § 504; Goldenberg v. Bartell Broadcasting Corp., 47 Mise 2d 105) he will have failed to establish a good cause of action and defendant should be permitted to renew its application for summary judgment. Concur — Capozzoli, J. P., Nunez, McNally, Steuer and Tilzer, JJ.