Pesce v Ruggiero

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Pesce v Ruggiero 2018 NY Slip Op 33428(U) December 17, 2018 Supreme Court, Kings County Docket Number: 523313/17 Judge: Leon Ruchelsman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*[FILED: 1] KINGS COUNTY CLERK 01/03/2019 08:46 AM] INDEX NO. 523313/2017 NYSCEF DPC. NO. 53 ' RECEIVED NYSCEF: 01/03/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS : CIVIL TERM: COMMERCIAL PART 8 ZOIB DEC 24 AH IQ: 02 ------------------------------------------x MARIA PESCE, DIANA BONELLI & FRANCES MADERO, Plaintiffs, Decision and order - against - Index No. 523313/17 (td CARLO RUGGIERO, Defendant, ~ 'J- December 17, 2018 ------------------------------------------x PRESENT: HON. LEON RUCHELSMAN The plaintiffs have moved pursuant to CPLR §3212 seeking summary judgement arguing there is no question of fact plaintiffs are entitled to judgement on the complaint. The defendant opposes the motion and has cross-moved seeking to dismiss the complaint. Papers were arguments submitted by all parties of all parties this court and after now makes reviewing the the following determination. On May 16, 1989 an entity called Salvatore Ruggiero Realty Corporation [hereinafter 'SRRC'] entered into a lease with an entity called Bath Beach Nurseries Inc., concerning premises owned by SRRC located at 8402 New Utrecht Avenue in Kings County. A rider to the lease provided that in the event SRRC decided to sell the property "it shall first be offered to any of the children or grandchildren of the present shareholders of the SALVATORE RUGGIERO REALTY CORP" (see, Rider to Lease Agreement, §2) . There is no dispute the three plaintiffs are the children of Nicoletta Pesce one of the shareholders of SRRC at the time and thus potentially enjoy a right of first refusal. On May 1, 1 of 4 2017 the defendant, [*[FILED: 2] KINGS COUNTY CLERK 01/03/2019 08:46 AM] INDEX NO. 523313/2017 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 01/03/2019 Carlo Ruggiero, acting as president of SRRC sold the property to another entity. This lawsuit was commenced claiming that the defendant sold the property without first conducting a shareholder meeting and without first. offering the plaintiffs the right to buy the property The plaintiffs have moved seeking summary judgement arguing there are no questions of fact regarding those two allegations. The defendant has cross-moved seeking to dismiss the complaint arguing, essentially, that a shareholder meeting did take place and that the right of first refusal had been waived. Conclusions of Law Summary judgement may be granted where the movant establishes sufficient evidence which would compel the court to grant judgement in his or her favor as a matter of law (Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). Summary judgement would thus be appropriate where no right of action exists foreclosing the continuation of the lawsuit. On November 7, 2016 a shareholder meeting of SRRC took place and a vote was taken approving the sale of the property. Thus, the first inquiry that must be explored concerns the shareholders of SRRC. There is no dispute that there are six owners of SRRC and they are the six children of Salvatore Ruggiero, namely Nicolette Pesce, Carlo Ruggerio, Nicholas Ruggerio, Arnello Ruggerio, Alfonso .2 2 of 4 [*[FILED: 3] KINGS COUNTY CLERK 01/03/2019 08:46 INDEX NO. 523313/2017 A~ . NYSCEF DOC. NO. 53 . " RECEIVED NYSCEF: 01/03/2019 It is also undisputed that at the Ruggerio and Olympia Marino. time of the shareholder meeting on November 7, remained alive. siblings, Thus, concerning the shares of the remaining five estate proceedings for Nicholas Ruggiero did not take place by the time of the meeting. to be 2016 only Carlo the owner of the shares formally transferred them. Nicholas' son Anthony purports although no estate proceeding Similarly, although estate proceedings for Alfonso Ruggiero had not taken place by the time the contract was signed such proceedings shareholder meeting fiduciary. Thus, wherein Phillip took place Phillip had the by the Ruggiero authority time was to of the named the vote at such meeting. Therefore, there are significant questions of fact which demand a denial of all motions seeking summary judgement. there are questions, despite the lack of any First, administration, whether Anthony had the authority to vote on the shares of his father. Anthony testified that the shares that belonged to his father first were transferred to his mother and then to him (see, Deposition of Anthony Ruggiero, page 28). Thus, there are questions concerning that transfer and whether Anthony could have obtained them from his mother despite the lack of an administration of Nicholas' estate. that meeting there Arnello's share. Even if Anthony had no authority to vote at has been no evidence presented concerning If those voting Arnello's share had the authority 3 3 of 4 [*[FILED: 4] KINGS COUNTY CLERK 01/03/2019 08:46 AM] INDEX NO. 523313/2017 NYSCEF QOC. NO. 53 RECEIVED NYSCEF: 01/03/2019 to so vote and Phillip's vote was valid, as noted, then Carlo maintained the requisite two thirds vote in which to approve the sale. These are questions which must be explored. the rider did offer the right of first Further, while refusal to the parties herein, there are questions whether a majority or two thirds vote waiving that right was effective. favor of the sale. Five of the six shares voted in As explained there are questions regarding the legality of Nicholas' share and Arnello's share. If those shares voted validly there are still questions whether such vote could waive the right of first refusal contained in the rider to the lease. Therefore, based on the foregoing, the motions seeking summary judgement are all denied. So ordered. ENTER: """'~~\ -- ·-· -~ ~ ~-: ~ ~ t .,, O~ DATED: December 17, 2018 Brooklyn N.Y. ..- ~,-----NW Hon. Leon Ruchelsman JSC 4 4 of 4 \ \ \