MatterofStonyCreekPreserve,Inc. ( 2014 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: October 23, 2014 517784
________________________________
In the Matter of the
Dissolution of STONY CREEK
PRESERVE, INC.
MICHAEL CICCOTELLI, MEMORANDUM AND ORDER
Respondent;
PETER C.W. PLACE et al.,
Appellants.
________________________________
Calendar Date: September 5, 2014
Before: Stein, J.P., McCarthy, Egan Jr., Lynch and Clark, JJ.
__________
John M. Hogan Jr., Saratoga Springs, for appellants.
Alisa Dalton, Saratoga Springs, for respondent.
__________
Stein, J.P.
Appeal from an order of the Supreme Court (Crowell, J.),
entered July 9, 2013 in Saratoga County, which, in a proceeding
pursuant to Business Corporation Law article 11, denied
respondents' motion to, among other things, dismiss the petition.
Petitioner commenced this proceeding pursuant to Business
Corporation Law §§ 1104 and 1104-a for judicial dissolution of
Stony Creek Preserve, Inc. (hereinafter the corporation), of
which he and respondent Peter C.W. Place (hereinafter Place) are
-2- 517784
each 50% shareholders, officers and directors.1 Place and his
wife, respondent Aim-Orn Place,2 interposed an answer asserting,
among other things, various affirmative defenses. Respondents,
together with the corporation, subsequently moved for, as
pertinent here, an order dismissing the petition on the ground
that the corporation was not properly served in accord with
Business Corporation Law § 1106. Supreme Court denied the
motion, finding that respondents had waived the issue of improper
service, and this appeal by respondents ensued.
We affirm, albeit on other grounds. To obtain jurisdiction
over the corporation, petitioner was required to comply with the
statutory notice provisions set forth in Business Corporation Law
§ 1106 (see Matter of Gould Erectors & Rigging, Inc., 119 AD3d
1039, 1040-1041 [2014]; Matter of Finando [Sunsource Health
Prods.], 226 AD2d 634, 635 [1996]). Such statute provides that,
upon the filing of a petition to judicially dissolve a
corporation, "the court shall make an order requiring the
corporation and all persons interested in the corporation to show
cause before it . . . why the corporation should not be
dissolved" (Business Corporation Law § 1106 [a]). As relevant
here, the order to show cause must be served upon, among others,
the subject corporation and each person named in the petition
(see Business Corporation Law § 1106 [c]). In accordance
therewith, the order to show cause issued here directed, among
other things, that personal service be made upon respondents and
that service upon the corporation be made in the manner
prescribed in Business Corporation Law § 1106. One permissible
method of effecting service on a corporation is by personal
service (see Business Corporation Law § 1106 [c]), upon "an
officer, director, managing or general agent, or cashier or
1
Place has commenced a separate action against petitioner,
which was dismissed by Supreme Court and is the subject of a
separate appeal (Place v Ciccotelli, ___ AD3d ___ [decided
herewith]).
2
Although the record is somewhat unclear, it appears that
petitioner's wife and Aim-Orn Place were, at some time, directors
of the corporation and that Aim-Orn Place was also a shareholder.
-3- 517784
assistant cashier or to any other agent authorized by appointment
or by law to receive service" (CPLR 311 [a] [1]).
Initially, we reject respondents' argument that the order
to show cause, itself, prevented Place from accepting service on
behalf of the corporation. Such argument is based on the
erroneous premise that the order to show cause contained a
temporary restraining order. The only temporary relief set forth
therein required the corporation and its officers and directors
to provide information regarding corporate assets and
liabilities, shareholder and creditor information, and to make
the corporate books available for inspection.
We are also unpersuaded by respondents' contention that
petitioner failed to obtain jurisdiction over the corporation.
Under the circumstances here, personal service of a copy of the
order to show cause upon Place was sufficient to effect service
on both the corporation and Place, individually (see Lac Leasing
Corp. v Dutchess Aero, Inc., 32 AD2d 949, 949 [1969]; Port
Chester Elec. Co. v Ronbed Corp., 28 AD2d 1008, 1008 [1967]; see
also Brown v Sagamore Hotel, 184 AD2d 47, 50 [1992]).
Considering that petitioner and Place were apparently the only
two officers of the corporation at the time, we find that service
upon Place constituted "notice 'reasonably calculated, under all
the circumstances, to apprise [Place and the corporation] of the
pendency of the [proceeding] and afford them an opportunity to
present their objections'" (Raschel v Rish, 69 NY2d 694, 696
[1986], quoting Mullane v Central Hanover Bank & Trust Co., 339
U.S. 306, 314 [1950]). No purpose would have been served by
delivery of a separate copy of the order to show cause to Place
for the corporation. Thus, service upon the corporation was
effectuated pursuant to CPLR 311 (a) (1) and Business Corporation
Law § 1106 and, inasmuch as jurisdiction was obtained over the
corporation, the motion to dismiss was properly denied (see
Matter of Gould Erectors & Rigging, Inc., 119 AD3d at 1040-
1041).3 To the extent not specifically addressed herein,
respondents' remaining contentions have been considered and found
3
Having reached this conclusion, we need not determine
whether the jurisdictional objection was waived.
-4- 517784
to be without merit.
McCarthy, Egan Jr., Lynch and Clark, JJ., concur.
ORDERED that the order is affirmed, with costs.
ENTER:
Robert D. Mayberger
Clerk of the Court