| N.Y. App. Div. | Jun 20, 1978
In a proceeding pursuant to section 618 of the Not-For-Profit Corporation Law to set aside the election of directors and officers of the Standardbred Owners Association, Inc., in which the individual respondents were elected directors in November, 1977, petitioner appeals from a judgment of the Supreme Court, Nassau County, dated March 2, 1978, which, inter alia, dismissed the petition. Judgment reversed, on the law, with $50 costs and disbursements payable by the respondents who have filed a brief, motion to dismiss petition denied, and proceeding remitted to Special Term for a hearing in accordance herewith. Special Term erred in dismissing the petition without a hearing. The petition raised factual issues and, in accordance with section 618 of the Not-For-Profit Corporation Law, the court should have forthwith heard the proofs of the parties. We do not believe that the petition is insufficient on its face for failure to establish that petitioner would have won a seat on the board of directors but for the claimed irregularities, since the court has "broad equitable powers and may direct a new election where the election under review is 'so clouded with doubt or tainted with questionable circumstances that the standards of fair dealing require the court to order a new, clear and adequate expression’. (Matter of Wyatt v. Armstrong, 186 Mise. 216, 220.)” (Matter of F. I. G. H. T., Inc., 79 Mise 2d 655, 659.) The hearing should be held as soon as possible. In the interests of accelerating the proceeding, there should be no bill of particulars or pretrial discovery. Hopkins, J. P., Damiani, Titone and Gulotta, JJ., concur.