64 A.D.2d 561 | N.Y. App. Div. | 1978
—Judgment, Supreme Court, New York County, entered September 2, 1977, unanimously modified, on the law, to increase the amount of judgment to that set forth in the stipulation of agreed fact, and otherwise affirmed, without costs and without disbursements. Plaintiff is president of a labor union of employees of a corporation of which defendants were the sole stockholders. A collective bargaining agreement called for the corporation to make periodic payments into the union’s welfare fund. The corporation filed in chapter 11 bankruptcy after failing to make payments for a total of $36,813.51 from May 1, 1973 through July 19, 1973. The corporation continued as debtor in possession. Within 90 days after the filing date, plaintiff served notice of intention to hold defendants liable for this corporate debt as sole stockholders under subdivision (a) of section 630 of the Business Corporation Law. An action to collect the sum due was commenced within 90 days after the bankruptcy court’s confirmation of arrangement in bankruptcy. Meanwhile, plaintiff had been under restraint imposed by the bankruptcy court, and the notice was timely to this extent. The trial court, dividing the moneys due by payroll periods, refused to allow recovery for May and June, 1973, on the ground that in each such situation 90-day notices calculated from the end of each month, had not been served timely. Only one such notice need have been served, and that was done within 90 days "after termination of such services,” as the statute provides. As to the commencement of the action without waiting, as the statute states, for "return of an execution unsatisfied against the corporation”, that would have been a futile gesture because of the bankruptcy. Settle an order on notice setting forth the proper amount of the judgment. Concur—Kupferman, J. P., Evans, Markewich, Yesawich and Sandler, JJ. [89 Misc 2d 952.]