In re O'Neill ( 1995 )

Balletta, J. P., concurs in part and dissents in part

and votes to modify the order appealed from by deleting the provisions thereof which directed Malloy Air East, Inc., to alter the corporate financial structure to provide for the payment of dividends or to purchase the petitioner’s interest therein, but not to remit the matter to the Supreme Court, Suffolk County, in the following memorandum: I concur with the majority that the order appealed from should be modified by deleting the provisions thereof which directed the respondent to alter the corporate financial structure to provide for payments of dividends to the petitioner for his share of any profits or to make an offer to buy the petitioner’s interest in the corporation. However, I disagree with the majority’s decision to remit the case to the trial court for the purpose of determining what rights, if any, the petitioner may be entitled to as a stockholder pursuant to the stockholder’s agreement since the petitioner never asked for such relief, either before the trial court or on appeal (see, e.g., Pinelli v De Paula Chevrolet, 101 AD2d 643, 645), and I am unaware of any authority under the Business Corporation Law § 1104-a which provides for the relief this Court has granted.