Lеe S. Kalish, Appellant, v Shelton C. Lindsay, Defendant, and Rock City Sound, Inc., Respondent. Gary E. Bashian et al., Nonparty Respondents.
Suprеme Court, Appellate Division, Second Department, New York
850 N.Y.S.2d 599
In an action for specific performance of a sharеholder‘s agreement, the plaintiff appeals (1) from so much of an order and judgment (one paper) of the Supreme Court, Dutchess County (Dolan, J.), dated August 11, 2006, as denied those branches of his motion which were to hold Gary E. Bashian and the law firm of Bashian & Farber, LLP in civil contempt pursuant to
Ordered that the order and judgment is modified, on the law, by deleting the provision thereof denying that branch of the plaintiff‘s motion which was to hold Gary E. Bashian, and the law firm of Bashian & Farber, LLP, in civil contempt pursuant to
Ordered that the order is reversed insofar as appealed from, on the law, and that branch of the plaintiff‘s motion which was for summary judgment against the defendant Rock City Sound, Inc., is granted; and it is further,
Ordered that one bill of costs is awarded to the appellant payable by the respоndent and nonparty respondents.
The plaintiff Lee Kalish and the defendant Shelton Lindsay each owned 50% of the shares of the defendant Rock City Sound, Inc. (hereinafter RCS), pursuant to a shareholder‘s agreement (hereinafter the agreement) dated Januаry 9, 1998. In 2004 the plaintiff attempted to withdraw as a shareholder. The terms of the agreement provided that RCS was to purchase the shаres for the “Established Value” as calculated in the agreement. The sale never took place because, according to the plaintiff, among other things, Lindsay set an established value that was too low.
The plaintiff brought this action seeking specific performance of the agreement, and moved for a preliminary injunction restraining the disposition of his shares. In an ordеr dated December 10, 2004, the court granted a preliminary injunction, inter alia, enjoining Lindsay from exercising any dominion or control оver the plaintiff‘s shares in RCS. Thereafter, in June 2005, Lindsay, as sole director of RCS, among other things, authorized himself to vote all of the plaintiff‘s shares.
In March 2006 the plaintiff moved to hold Lindsay and his then counsel Gary E. Bashian and the law firm of Bashian & Farber, LLP (hereinafter B & F), in civil contempt pursuant to
In an order and judgment dated August 11, 2006, the court granted that branch of the plaintiff‘s contempt motion which sоught to hold Lindsay in contempt, and imposed a fine against Lindsay in the amount of $1,145,580, but denied that branch of the motion which sought to hold Bashian and B & F in contempt and sought the return of legal fees that RCS had paid them. In a separate order also dated August 11, 2006, the court dеnied the plaintiff‘s motion for summary judgment as academic, because the order and judgment determining his contempt motion awarded to him the $1,145,580 he sought in his summary judgment motion.
To prevail on a motion to punish a party for civil contempt, the movant must demonstrate thаt the party so charged violated a clear and unequivocal court order (see
As to the return of legal fees, a party who is neither a present nor a former client of an аttorney has no standing to complain about the attorney‘s representation (see Vanarthros v St. Francis Hosp., 234 AD2d 450 [1996]; see also A.F.C. Enters., Inc. v New York City School Constr. Auth., 33 AD3d 736 [2006]). An attorney does not represent a coshareholder simply by reason of his or her representation of the corporation, unless he or she affirmatively assumes that duty (see Walker v Saftler, Saftler & Kirschner, 239 AD2d 252 [1997]; Kushner v Herman, 215 AD2d 633 [1995]). Here, Bashian and B & F were retained to represent Lindsay and RCS only, and the plaintiff was, at all times
However, we disagree with the Supreme Court‘s conclusion that the branch of plаintiff‘s motion which sought summary judgment against RCS was academic. A matter is academic when a determination is sought which, if rendered, could nоt have any practical effect on the existing controversy (see Wisholek v Douglas, 97 NY2d 740, 742 [2002]; SOS Oil Corp. v Norstar Bank of Long Is., 152 AD2d 223 [1989], affd 76 NY2d 561 [1990]). Here, in his summary judgment motion, the рlaintiff sought, inter alia, an order directing Lindsay and RCS to purchase his shares for the principal amount of $1,145,580. Since the court‘s cоntempt order and judgment specifically directed Lindsay to pay that amount, and not RCS, the motion was not academic with regаrd to RCS. Inasmuch as RCS is also a named defendant, a money judgment against it would have the practical effect of allowing the рlaintiff to recover against the corporation, as well as against Lindsay (cf. Wisholek v Douglas, 97 NY2d at 740). Consequently, the court should not have denied as academic that branch of the plaintiff‘s motion which sought summary judgment against RCS. Since the record demonstrates that the plaintiff made a prima facie showing of entitlement to judgment as a matter of law, in opposition which RCS failed to raise a triable issue of fact (see generally Alvarez v Prospect Hosp., 68 NY2d 320 [1986]), that branch of the plaintiff‘s motion which was for summary judgment against RCS should have been granted.
Skelos, J.P., Ritter, Miller and Covello, JJ., concur.