MATTER OF GOLDBERG v. Harwood

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88 N.Y.2d 911 (1996)

669 N.E.2d 821

646 N.Y.S.2d 663

In the Matter of Gary D. Goldberg, Appellant, v. Andrew M. Harwood et al., Respondents.

Court of Appeals of the State of New York.

Argued May 1, 1996.

Decided June 11, 1996.

Jaffe, Segal & Ross, New York City (Steven R. Miller of counsel), for appellant.

Andrew M. Harwood, New York City, respondent pro se.

Jeffrey D. Taub, New York City, for J.W. Realty Co., landlord/creditor.

Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK concur.

*913MEMORANDUM.

The judgment appealed from and order of the Appellate Division brought up for review should be affirmed, with costs.

Subsequent to arbitration, a judgment of dissolution was issued for the corporate respondent which provided for a public sale of the corporate assets. The "Terms of Sale" identified the lease of the premises where the corporation conducted business as one of the assets. At the time of the sale, the corporate tenant had defaulted in the payment of rent due under the lease. Prior to the sale, the landlord advised the Referee appointed to conduct the sale that it was a creditor of the corporation for the balance due under the lease. Respondent Harwood, the highest bidder at the auction, purchased all of the corporate assets. Petitioner, formerly a 50% shareholder in the corporation, moved to vacate the sale and declare Harwood an assignee of the lease. Thereafter, the landlord filed a motion, pursuant to Business Corporation Law ยง 1007, asserting a claim for the balance due under the lease. The courts below denied petitioner's motion to vacate the sale, declined to find Harwood an assignee of the lease, and granted the landlord's motion directing the Referee to pay the landlord $209,846.80 out of the sale proceeds in settlement of its claim.

Under the circumstances, the landlord was entitled to enforce its claim as creditor against the assets of the dissolved corporation, and the Referee properly ordered satisfaction of this claim from the sale proceeds.

Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, in a memorandum.