Torres v. Speiser

Jan 11, 2000
Versions:268 A.D.2d 253
701 N.Y.S.2d 360
2000 N.Y. App. Div. LEXIS 338

—Order, Supreme Court, Bronx County (Kenneth Thompson, Jr., J.), entered December 24, 1998, which denied plaintiffs motion for partial summary judgment with respect to his claim that the sale of his minority interest in defendant corporation to the individual defendant is invalid, unanimously affirmed, without costs.

There is no merit to plaintiffs argument that the sale of his stock is invalid under Business Corporation Law § 504 because the price of the stock was less than its par value and such defect could not be cured by the individual defendant’s promises of future consideration. While section 504 prohibits an initial issuance of stock in a new corporation for less than par value or before the full purchase price is paid, it has no bearing on a re-sale of issued shares among shareholders, as occurred here (see, Vohra v Prasad Realty Corp., 174 AD2d 735). Nor can summary judgment be granted to plaintiff on the ground that the individual defendant’s promises to assist him in establishing a check cashing business in Puerto Rico that he was to manage, and to establish a corporation to own that business the stock of which was to be divided between himself and defendant in a “mutually acceptable manner”, were material terms of his agreement to retransfer his stock that are so indefinite as not to be susceptible to enforcement, and that the *254entire transaction therefore was nothing more than an unenforceable agreement to agree. There are issues of fact in this regard as to partial performance of the purported agreement (see, R.G. Group v Horn & Hardart Co., 751 F2d 69, 75-76; 1163 Realty Corp v United Institutional Servicing Corp., 55 AD2d 908, 909; SNC, Ltd. v Kamine Eng’g & Mech. Contr. Co., 238 AD2d 146). We have considered plaintiffs’ other arguments and find them unpersuasive.

Motion for a default judgment pursuant to CPLR 3215 and for other related relief denied. Concur—Williams, J. P., Mazzarelli, Wallach, Andrias and Friedman, JJ.