ACTION TO DISSOLVE A CLOSELY HELD CORPORATION BASED UPON BREACH OF A FIDUCIARY DUTY WAS TIMELY AND JUDICIAL DISSOLUTION WAS PROPERLY GRANTED (THIRD DEPT).
The Third Department determined Supreme Court properly dissolved a closely-held corporation, finding that the respondent shareholders had “breached their fiduciary duties owed to petitioners by engaging in oppressive conduct aimed at ‘freez[ing]’ petitioners out of the corporation, as well as looting, wasting and/or diverting corporate assets for noncorporate purposes.” The decision is detailed and fact-specific. The court noted that the shares of two of the petitioners were beneficial shares in that they were held in trust by their father, who was also a petitioner. Although the children did not have standing to bring an action to dissolve the corporation because the holders of beneficial shares cannot vote, their father, as trustee, could vote, which conferred standing. The court further noted that an action to dissolve a corporation based on a breach of a fiduciary duty is equitable in nature and therefore the six-year statute of limitations applies. The action was timely because the first overt repudiation of a fiduciary duty by the respondents occurred within six years of the action:
Here, the gravamen of the petition is that respondents, as the majority shareholders, breached their fiduciary duties owed to petitioners, as the minority shareholders. Although the petition alleges fraudulent acts in the form of looting, the allegation of fraud is not essential to the breach of fiduciary duty claim. In light of this, and the fact that the remedy of a judicial dissolution is equitable in nature, we find that “the six-year limitations period of CPLR 213 (1) applies” … , and it does not commence “until there has been an open repudiation by the fiduciary or the relationship has otherwise been clearly terminated”… . In our view, respondents’ attempt in 2009 to force petitioners to sell their shares is the earliest point at which respondents can be said to have openly repudiated the fiduciary relationship. Given that this proceeding was commenced within six years of the 2009 force-out attempt, we agree with Supreme Court that this proceeding is not time-barred. * * *
Business Corporation Law § 1104-a permits a court to dissolve a closely-held corporation where, as is relevant here, those in control of the corporation have engaged in “oppressive actions toward the complaining shareholders” or have “looted, wasted, or diverted” corporate assets for noncorporate purposes (Business Corporation Law § 1104-a [a] [1], [2] …). “Although the term ‘oppressive actions’ is not statutorily defined, the Court of Appeals has held that ‘oppression should be deemed to arise . . . when the majority conduct substantially defeats expectations that, objectively viewed, were both reasonable under the circumstances and were central to the petitioner[s’] decision to join the venture'”… . Contrary to respondents’ contention, this standard is equally applicable to passive shareholders, such as petitioners, inasmuch as the standard is not focused on the complaining shareholders’ level of involvement with the corporation but, rather, their reasonable expectations and whether those expectations were defeated … . Matter of Twin Bay Vil., Inc. v Kasian, 2017 NY Slip Op 06024, Third Dept 8-3-17
CORPORATION LAW (DISSOLUTION, ACTION TO DISSOLVE A CLOSELY HELD CORPORATION BASED UPON BREACH OF A FIDUCIARY DUTY WAS TIMELY AND JUDICIAL DISSOLUTION WAS PROPERLY GRANTED (THIRD DEPT))/DISSOLUTION (CORPORATION LAW, ACTION TO DISSOLVE A CLOSELY HELD CORPORATION BASED UPON BREACH OF A FIDUCIARY DUTY WAS TIMELY AND JUDICIAL DISSOLUTION WAS PROPERLY GRANTED (THIRD DEPT))/FIDUCIARY DUTY (CORPORATION LAW, ACTION TO DISSOLVE A CLOSELY HELD CORPORATION BASED UPON BREACH OF A FIDUCIARY DUTY WAS TIMELY AND JUDICIAL DISSOLUTION WAS PROPERLY GRANTED (THIRD DEPT))/CLOSELY HELD CORPORATIONS (DISSOLUTION, ACTION TO DISSOLVE A CLOSELY HELD CORPORATION BASED UPON BREACH OF A FIDUCIARY DUTY WAS TIMELY AND JUDICIAL DISSOLUTION WAS PROPERLY GRANTED (THIRD DEPT))/CIVIL PROCEDURE (STATUTE OF LIMITATIONS, ACTION TO DISSOLVE A CLOSELY HELD CORPORATION BASED UPON BREACH OF A FIDUCIARY DUTY WAS TIMELY AND JUDICIAL DISSOLUTION WAS PROPERLY GRANTED (THIRD DEPT))/STATUTE OF LIMITATIONS (DISSOLUTION OF CORPORATIONS, ACTION TO DISSOLVE A CLOSELY HELD CORPORATION BASED UPON BREACH OF A FIDUCIARY DUTY WAS TIMELY AND JUDICIAL DISSOLUTION WAS PROPERLY GRANTED (THIRD DEPT))