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NY Business Divorce Information on Dissolution and Other Disputes Among Owners of New York Corporations, LLCs and Partnerships

Top Ten Business Divorce Cases of 2012

Posted in Annual Top 10 Cases

I’m pleased to present my fifth annual list of picks for the past year’s ten most significant business divorce cases. This year’s crop, five of which are appellate decisions, includes highly interesting and important rulings on a variety of issues in dissolution, buy-out, appraisal and fiduciary breach cases involving closely held corporations, partnerships and limited liability companies. All ten were featured in this blog previously; click on the case name to read the full treatment. And the winners are:

  1. Kagan v. HMC-New York, Inc., 94 AD3d 67, 2012 NY Slip Op 01514 (1st Dept Feb. 28, 2012), in which a closely divided panel of the Appellate Division, First Department, applied Delaware law to dismiss claims for breach of fiduciary duty against LLC managers based on the operating agreement’s provision limiting manager liability.
  2. Matter of Grande’ Vie, LLC, 93 AD3d 1281, 2012 NY Slip Op 02190 (4th Dept Mar. 23, 2012), another appellate decision, where the court reversed a lower court order and compelled arbitration over a disputed appraisal notwithstanding language in the buy-sell agreement making the appraisal “binding.”
  3. Matter of Clever Innovations, Inc., 94 AD3d 1174, 2012 NY Slip Op 02536 (3d Dept Apr. 5, 2012), a case of dueling dissolution petitions by 50/50 shareholders in which an upstate appellate panel affirmed an order compelling a buy-out of the shareholder who’d filed a BCL 1104-a petition as an oppressed shareholder by the shareholder who’d filed a BCL 1104 petition for deadlock.
  4. Matter of Cooperstown Capital, LLC, Index No. 2010-0315 (Sup Ct Otsego County Apr. 6, 2012), a case making its second appearance in the Top Ten list, in which the court granted dissolution of an LLC based on the majority member’s “egregious” breach of the operating agreement by diverting business to other facilities separately owned by that member.
  5. M.H. Mandelbaum Orthotic & Prosthetic Services, Inc. v. Werner, 2012 NY Slip Op 32080(U) (Sup Ct Suffolk County May 30, 2012), an unusual case where the court invalidated a son-to-father stock transfer as violating a right of first refusal in the shareholders agreement requiring the transferee to assume the transferor’s job duties.
  6. Garber v. Stevens, Index No. 601917/05 (Sup Ct NY County June 6, 2012), where the court exercised its equitable powers to remove and replace a limited partnership’s general partner who was found to have misappropriated partnership funds and placed the partnership’s realty assets in jeopardy of foreclosure.
  7. Chiu v. Chiu, Index No. 21905/07 (Sup Ct Queens County Aug. 30, 2012) (see second part of series here), another repeat Top Ten performer, in which the court decided issues concerning the LLC owners’ membership percentages based on capital contributions and the valuation of the withdrawing member’s interest in the real estate holding company.
  8. Alf Naman Real Estate Advisors, LLC v. Capsag Harbor Management, LLC, 2012 NY Slip Op 32559(U) (Sup Ct NY County Oct. 3, 2012), a rare case involving an untimely, unsuccessful effort by a minority member of an LLC to challenge the  $465.00 price paid to him after he dissented from a merger engineered by the controlling member.
  9. Pappas v. Tzolis, 2012 NY Slip Op 08053 (Ct App Nov. 27, 2012), a major decision by New York’s highest appellate court in which it enforced a written waiver of fiduciary duty given as part of a buy-out of membership interests in an LLC, after the sellers sued upon learning that the buyer had negotiated a lucrative sale of the LLC’s sole asset.
  10. Giaimo v. Vitale, 2012 NY Slip Op 08778 (1st Dept Dec. 20, 2012), yet another important appellate decision in which the court ordered a 16% discount for lack of marketability in valuing shares in C corporation real estate holding companies and held proper the application of a discount for built-in capital gains based on projected taxes after a 10-year holding period discounted to present value.