You are here: / / PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED,...
,

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED, A DE FACTO MERGER OF THE JUDGMENT DEBTOR WITH THE CURRENT DEFENDANT WAS DEMONSTRATED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff judgment-creditor’s motion for summary judgment should have been granted. Plaintiff alleged a de facto merger between defendant Luigi’s Bakery Corp and its predecessor Luigi’s Family Bakery, making the Bakery Corp. liable for the Family Bakery’s debt:

Factors courts consider in determining whether a de facto merger has occurred include “continuity of ownership; . . . a cessation of ordinary business and dissolution of the predecessor as soon as practically and legally possible; . . . assumption by the successor of the liabilities ordinarily necessary for the uninterrupted continuation of the business of the predecessor; and . . . a continuity of management, personnel, physical location, assets, and general business operation” … . Not all of these factors are required to demonstrate a merger; ” rather, these factors are only indicators that tend to show a de facto merger’ ” … .

Here, defendants admitted to continuity of ownership between Family Bakery and Bakery Corp., and to two of the other factors of a de facto merger: cessation of ordinary business operations, and continuity of management, personnel, physical location, and general business operation. In both their answer and their bill of particulars, defendants admitted that the successor corporation, Bakery Corp., was formed in the same month that the predecessor corporation, Family Bakery, ceased operations. They also admitted that the successor corporation used the same address and phone number as the predecessor corporation. We therefore conclude that the court erred in determining that there are issues of fact with respect to the date of incorporation of the successor corporation or the date of dissolution of the predecessor corporation. A case for de facto merger can be made without a legal dissolution where, as here, the predecessor company “has become, in essence, a shell” … . Energy Coop. of Am., Inc. v Luigi’s Family Bakery, Inc., 2019 NY Slip Op 02211, Fourth Dept 3-22-19

 

You might also like
Motion to Vacate Pursuant to CPLR 5015 Should Have Been Granted On “Subject Matter Jurisdiction” and “Fraud Upon the Court” Grounds
Restitution to Police Department Re: Expenses of Drug Bust Proper
DEFENDANT WAS ERRONEOUSLY TOLD HE COULD APPEAL THE GRAND JURY EVIDENCE ISSUES AFTER ENTERING A GUILTY PLEA, HIS MOTION TO WITHDRAW HIS PLEA UPON LEARNING OF THE ERROR SHOULD HAVE BEEN GRANTED. ​
“Nailing” of Petition on Next to Last Day for Service, and Mailing on the Last Day, Was Sufficient—Respondent, Who Initially Declined Designation as a Candidate, Could Not Subsequently Accept Designation as a Substitute Candidate
Rule Requiring Submission of Order or Judgment for Signature within 60 Days Applies Only When Court Directs that the Proposed Order Be Settled or Submitted for Signature
Contractor May Be Liable to Noncontracting Third Party If Area Made Less Safe by Contractor’s Work
DEFENDANT’S ABSENCE FROM SIDEBAR CONFERENCES DURING JURY SELECTION DID NOT REQUIRE REVERSAL (FOURTH DEPT). ​
In Absence of a “Special Relationship” Insurer Not Liable for Agent’s Negligent Misrepresentation

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

PLAINTIFF MADE A LEFT TURN IN FRONT OF DEFENDANT’S ONCOMING CAR WHEN DEFENDANT... FAMILY COURT DID NOT MAKE THE REQUIRED FINDINGS OF FACT IN THIS FAMILY OFFENSE,...