From: Subject: Matter of Beverwyck Abstract L.L.C. (2008 NY Slip Op 06337) Date: Tue, 22 Jul 2008 12:59:46 -0400 MIME-Version: 1.0 Content-Type: text/html; charset="Windows-1252" Content-Transfer-Encoding: quoted-printable Content-Location: http://www.courts.state.ny.us/reporter/3dseries/2008/2008_06337.htm X-MimeOLE: Produced By Microsoft MimeOLE V6.00.2900.3198 Matter of Beverwyck Abstract L.L.C. (2008 NY Slip Op = 06337)
Matter of Beverwyck Abstract, = L.L.C.
2008 NY Slip Op 06337
Decided on July 17, 2008
Appellate Division, Third Department
Published by New York State = Law=20 Reporting Bureau pursuant to Judiciary Law =A7 = 431.
This opinion is uncorrected = and=20 subject to revision before publication in the Official=20 Reports.


Decided and Entered: = July 17,=20 2008=20

504115

[*1]In the Matter=20 of the Dissolution of BEVERWYCK ABSTRACT, LLC. DOUGLAS ENGLES et al.,=20 Appellants; GATEWAY TITLE AGENCY, LLC, Respondents.=20


Calendar Date: May 30, 2008
Before: = Mercure, J.P.,=20 Spain, Rose, Kavanagh and Stein, JJ.


Ganz, Wolkenbreit & = Friedman, Albany (Robert E.
Ganz of counsel), for appellants. =
Luibrand=20 Law Firm, P.L.L.C., Latham (Kevin A.
Luibrand of counsel), for = respondents.=20

MEMORANDUM AND ORDER


Rose, J.=20

Appeal from an order of the Supreme Court (Platkin, J.), entered July = 24,=20 2007 in Albany County, which, in a proceeding pursuant to Limited = Liability=20 Company Law =A7 702, denied petitioners' motion to set the date of = dissolution of=20 Beverwyck Abstract, LLC to be February 17, 2003.=20

Petitioners formed Beverwyck Abstract, LLC, a New York limited = liability=20 company, to provide discounted title insurance services to their = existing real=20 estate and mortgage brokerage firms. Respondent Gateway Title Agency, = LLC was=20 brought in as a minority member to perform those services for Beverwyck. = On=20 February 17, 2003, after problems arose among Beverwyck's members, they = met to=20 discuss termination of Gateway's services to Beverwyck. When Gateway = refused to=20 resign or withdraw its membership interest in Beverwyck, petitioners = sought its=20 judicial dissolution. Following a nonjury trial, Supreme Court (Spargo, = J.)=20 dissolved Beverwyck by an order dated May 26, 2005. After differing = accounting=20 reports were filed because the parties could not agree on the effective=20 dissolution date of Beverwyck, petitioners made a motion in limine to = set the=20 date of dissolution as February 17, 2003. Instead, Supreme Court = (Platkin, J.)=20 found the date to be May 26, 2005, the date of judicial dissolution, = prompting=20 this appeal by petitioners. [*2]

We cannot agree with petitioners' heavy reliance upon case law = regarding the=20 dissolution of at-will partnerships and joint ventures to support their=20 contention that the parties' fiduciary duties to each other as members = of a=20 limited liability company ended when they met and decided on February = 17, 2003=20 that Gateway would no longer provide title insurance services to = Beverwyck. The=20 pertinent provisions of the Limited Liability Company Law and = Beverwyck's=20 operating agreement provide sufficient guidance here. Limited Liability = Company=20 Law =A7 701 provides for nonjudicial dissolution of a limited liability = company=20 upon "(2) the happening of events specified in the operating agreement" = or "(3)=20 . . . the vote or written consent of at least a majority in interest of = the=20 members." In article IX, Beverwyck's operating agreement similarly = provides for=20 dissolution upon the vote or written consent by a majority or a decree = of=20 judicial dissolution pursuant to the Limited Liability Company Law.=20

Here, it is uncontroverted that there was no formal vote or written = consent=20 of the majority of the members to dissolve. Inasmuch as they failed to = do so,=20 petitioners' argument that they could have unilaterally dissolved = Beverwyck=20 because they held a majority interest is unavailing. In addition, the = parties'=20 agreement in February was only to end Gateway's services. Dissolution = was not=20 discussed and Gateway continued to be a member. Absent written consent = or formal=20 vote of a majority of members, the only means of dissolution recognized = by the=20 operating agreement and applicable statute was by judicial dissolution.=20 Accordingly, Supreme Court correctly determined the date of Beverwyck's=20 dissolution.=20

Mercure, J.P., Spain, Kavanagh and Stein, JJ., concur.=20

ORDERED that the order is affirmed, with costs.

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