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PLAINTIFF DID NOT DEMONSTRATE THE CONTINUITY OF OWNERSHIP ELEMENT OF THE DE FACTO MERGER DOCTRINE SUCH THAT THE ASSETS OF ONE DEFENDANT SHOULD BE USED TO SATISFY THE DEBT OF ANOTHER (FOURTH DEPT).

The Fourth Department, modifying Supreme Court, determined plaintiff did not show that there was a continuity of ownership such that, pursuant to the de facto merger doctrine, the assets of defendant NYP Ag should be used to satisfy a judgment against NYP Management:

“Traditionally, courts have considered several factors in determining whether a de facto merger has occurred: (1) continuity of ownership; (2) a cessation of ordinary business and dissolution of the predecessor as soon as practically and legally possible; (3) assumption by the successor of the liabilities ordinarily necessary for the uninterrupted continuation of the business of the predecessor; and (4) a continuity of management, personnel, physical location, assets, and general business operation” … . …

… [C]ourts have flexibility in determining whether a transaction constitutes a de facto merger. While factors such as shareholder and management continuity will be evidence that a de facto merger has occurred . . . , those factors alone should not be determinative” … . … “[I]n non-tort actions, continuity of ownership is the essence of a merger’ ” … , and is a necessary predicate to finding a de facto merger…  Here, inasmuch as [plaintiff] failed to establish continuity of ownership, it failed to establish that there was a de facto merger between the two corporations … . R&D Electronics, Inc. v NYP Mgt., Co., Inc., 2018 NY Slip Op 04151, Fourth Dept 6-8-18

CORPORATION LAW (PLAINTIFF DID NOT DEMONSTRATE THE CONTINUITY OF OWNERSHIP ELEMENT OF THE DE FACTO MERGER DOCTRINE SUCH THAT THE ASSETS OF ONE DEFENDANT SHOULD BE USED TO SATISFY THE DEBT OF ANOTHER (FOURTH DEPT))/DEBTOR-CREDITOR (CORPORATION LAW, PLAINTIFF DID NOT DEMONSTRATE THE CONTINUITY OF OWNERSHIP ELEMENT OF THE DE FACTO MERGER DOCTRINE SUCH THAT THE ASSETS OF ONE DEFENDANT SHOULD BE USED TO SATISFY THE DEBT OF ANOTHER (FOURTH DEPT))/DE FACTOR MERGER (CORPORATION LAW, DEBTOR-CREDITOR, PLAINTIFF DID NOT DEMONSTRATE THE CONTINUITY OF OWNERSHIP ELEMENT OF THE DE FACTO MERGER DOCTRINE SUCH THAT THE ASSETS OF ONE DEFENDANT SHOULD BE USED TO SATISFY THE DEBT OF ANOTHER (FOURTH DEPT))

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THE CHILDREN WISHED TO REMAIN WITH MOTHER BUT CUSTODY WAS AWARDED TO FATHER; THE ATTORNEY FOR THE CHILD AGREED FATHER SHOULD HAVE CUSTODY; MOTHER REQUESTED A LINCOLN HEARING WHICH WAS DENIED; THE DISSENT ARGUED A LINCOLN HEARING SHOULD HAVE BEEN HELD (FOURTH DEPT).
RESTITUTION SHOULD NOT HAVE BEEN ORDERED BECAUSE IT WAS NOT PART OF THE PLEA AGREEMENT, THE ARGUMENT SURVIVES THE GUILTY PLEA AND THE WAIVER OF APPEAL; DEFENDANT’S CONTENTION HE WAS DEPRIVED OF HIS RIGHT TO COUNSEL DID NOT SURVIVE THE WAIVER OF APPEAL BECAUSE DEFENDANT DID NOT ASSERT THE DEPRIVATION INFECTED THE PLEA AGREEMENT OR THE VOLUNTARINESS OF THE PLEA (FOURTH DEPT).
Under the Unambiguous Terms of the Collective Bargaining Agreement, Plaintiff, a Retiree Who Was No Longer a Union Member, Was Not Subject to the Grievance-Filing Requirement and Could Sue Directly
PETITIONER’S OBJECTION TO THE SUPPORT MAGISTRATE’S ORDER SHOULD NOT HAVE BEEN DENIED; THE CSSA APPLIES EVEN WHEN THE CHILD RECEIVES PUBLIC ASSISTANCE; DOWNWARD DEVIATION FROM THE PRESUMPTIVE SUPPORT LEVEL IMPROPERLY APPLIED THE PROPORTIONAL OFFSET METHOD (FOURTH DEPT).
ALTHOUGH FAMILY COURT CAN DIRECT MOTHER TO ENGAGE IN COUNSELING, SUBMIT TO DRUG TESTS AND TAKE MEDICATION, FAMILY COURT CAN NOT MAKE THE DIRECTIVES A PREREQUISITE FOR VISITATION (FOURTH DEPT).
QUESTIONS OF FACT (1) WHETHER DEFENDANTS WERE CASUAL SELLERS OF THE GAS PUMPS SOLD TO A SCRAP YARD AND THEREFORE OWED NO DUTY OF CARE TO THE INJURED PLAINTIFF AND (2) WHETHER DEFENDANTS OWED PLAINTIFF A DUTY OF CARE BECAUSE THE PRESENCE OF GASOLINE IN THE PUMP WHICH EXPLODED WAS NOT OPEN AND OBVIOUS (FOURTH DEPT).​
FAILURE TO APPRISE COUNSEL OF THE CONTENTS OF A NOTE FROM THE JURY REQUIRED REVERSAL.

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