From: Subject: Van Der Lande v Stout (2004 NY Slip Op 09439) Date: Fri, 20 Jun 2008 07:39:21 -0500 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/2004/2004_09439.htm X-MimeOLE: Produced By Microsoft MimeOLE V6.00.2900.3198 Van Der Lande v Stout (2004 NY Slip Op 09439)
Van Der Lande v Stout
2004 NY Slip Op 09439 [13 AD3d 261]
December 21, 2004
Appellate Division, First Department
Published by New York State = Law=20 Reporting Bureau pursuant to Judiciary Law =A7 = 431.
As corrected through Wednesday, February 23,=20 2005


Jan Van Der Lande, Appellant,
v
Robin John Stout et = al.,=20 Respondents.

=97[*1]=20

Order, Supreme Court, New York County (Marylin G. Diamond, J.), = entered May=20 13, 2003, which, to the extent appealed from as limited by the briefs, = denied=20 plaintiff's motion for a preliminary injunction, granted defendants' = motion for=20 summary judgment to the extent of dismissing plaintiff's first and third = causes=20 of action in part and fourth and fifth causes of action in their = entirety, and=20 denied plaintiff's cross motion for leave to amend the complaint, = unanimously=20 affirmed, with costs.=20

The application for a preliminary injunction against the individual=20 defendants' use of defendant limited liability company's (LLC) funds in = defense=20 of the action and from compelling plaintiff, a member of the LLC, to = make=20 additional contributions to the LLC for such legal expenses was properly = denied.=20 Limited Liability Company Law =A7 420 allows the LLC to advance and pay = its=20 members' legal expenses where, as here, there has been no judgment or = "final=20 adjudication" that the individual defendants acted in bad faith, were = dishonest=20 or personally gained profit to which they were not entitled. Plaintiff = was also=20 required to make the additional capital contribution to the LLC approved = by a=20 vote of the individual defendants, who represented a quorum of the LLC. = That=20 plaintiff commenced the lawsuit, which caused the need for the = additional=20 contribution, does not constitute an exception to his obligations to the = LLC.=20

The court's grant of summary judgment to the extent of dismissing the = first=20 and third causes of action in part should not be disturbed. As = recognized by the=20 motion court, with the exception of claims concerning defendants' = conduct in=20 pursuing the separation of the LLC's property, the remaining allegations = in the=20 complaint constituted mere business disagreements with respect to how = the=20 property was managed, and should not be questioned by the courts where, = as here,=20 there is no evidence of bad faith or self-dealing on the part of the = individual=20 defendants (see Auerbach v Bennett, 47 NY2d 619, 629 [1979]).=20

Plaintiff's fourth cause of action, seeking the appointment of a = receiver,=20 was properly dismissed since the circumstances did not warrant such an=20 appointment (see Matter of Trepper v Goldbetter, 205 AD2d 363 = [1994]).=20 The subsequent filing of a petition to dissolve defendant LLC has = rendered moot=20 plaintiff's challenge to the denial of his cross motion to amend the = complaint=20 to assert a claim for dissolution. [*2]

We have considered plaintiff's remaining contentions and find them=20 unavailing. Concur=97Nardelli, J.P., Andrias, Ellerin, Marlow and = Sweeny, JJ.=20