        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

873
CA 15-01772
PRESENT: WHALEN, P.J., SMITH, LINDLEY, TROUTMAN, AND SCUDDER, JJ.


IN THE MATTER OF KAMLEH S. TEHAN, AS EXECUTRIX
OF THE ESTATE OF ROBERT J. TEHAN, DECEASED,
PETITIONER-APPELLANT,                             MEMORANDUM AND ORDER
FOR JUDICIAL DISSOLUTION OF TEHAN’S CATALOG
SHOWROOMS, INC., RESPONDENT-RESPONDENT.

(APPEAL NO. 2.)


BARCLAY DAMON, LLP, SYRACUSE (JON P. DEVENDORF OF COUNSEL), FOR
PETITIONER-APPELLANT.

STEATES, REMMELL, STEATES & DZIEKAN, ESQS., UTICA (CARL S. DZIEKAN OF
COUNSEL), FOR RESPONDENT-RESPONDENT.


     Appeal from an order of the Supreme Court, Oneida County (Patrick
F. MacRae, J.), entered August 3, 2015. The order, among other
things, granted respondent’s motion for summary judgment dismissing
the petition.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying respondent’s motion in part
and reinstating the first cause of action, and as modified the order
is affirmed without costs.

     Memorandum: Petitioner, in her capacity as executrix of the
estate of her husband (decedent) commenced this proceeding seeking,
inter alia, declaratory relief and dissolution of respondent pursuant
to Business Corporation Law § 1104-a. In a prior appeal (Matter of
Tehan v Tehan’s Catalog Showrooms, Inc., 110 AD3d 1498), this Court
affirmed an order that denied respondent’s motion insofar as it sought
summary judgment dismissing the petition for lack of standing to bring
a dissolution proceeding because decedent’s estate allegedly did not
hold 20% or more of the shares in respondent. That motion was denied
without prejudice to renew upon completion of discovery.

     Respondent thereafter moved to dismiss the petition pursuant to
CPLR 3211 (a) (3) and for summary judgment, and petitioner cross-moved
for partial summary judgment dismissing respondent’s affirmative
defense alleging lack of standing, and seeking the relief sought in
the third cause of action in the petition pursuant to Business
Corporation Law § 1104-a. In appeal No. 1, petitioner appeals and
respondent cross-appeals from an order denying respondent’s motion,
granting that part of petitioner’s cross motion seeking summary
judgment dismissing the affirmative defense alleging lack of standing,
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                                                         CA 15-01772

and otherwise denying the cross motion.

     Following entry of the order in appeal No. 1, respondent again
moved for summary judgment dismissing the petition, and petitioner
cross-moved for various forms of relief. In appeal No. 2, petitioner
appeals from an order granting the motion and denying her cross
motion.

     At the outset, we note that the appeal from the order in appeal
No. 1 must be dismissed inasmuch as that order is subsumed in the
final order in appeal No. 2 (see Hughes v Nussbaumer, Clarke & Velzy,
140 AD2d 988, 988; see also CPLR 5501 [a] [1]). In addition, although
respondent’s cross appeal must also be dismissed because it is not
aggrieved based on the final order in appeal No. 2 granting its motion
and dismissing the petition (see CPLR 5511; Matter of Speis v Penfield
Cent. Schs., 114 AD3d 1181, 1183), we may nevertheless consider its
contentions as alternative grounds for affirmance of the order in
appeal No. 2 (see Parochial Bus Sys. v Board of Educ. of City of N.Y.,
60 NY2d 539, 545-546; Matter of Harnischfeger v Moore, 56 AD3d 1131,
1131-1132).

     We agree with petitioner that Supreme Court erred in granting
that part of respondent’s motion seeking summary judgment dismissing
the first cause of action. That cause of action sought judgment
declaring, inter alia, that the shareholders’ agreement executed in
1980 by decedent and the other shareholders of respondent had been
abandoned, and that respondent had waived its right to redeem the
shares held by decedent’s estate under the terms of the agreement by,
among other things, failing to exercise that right in a timely manner.
Even assuming, arguendo, that respondent met its burden of
establishing its entitlement to judgment, we conclude that questions
of fact remain whether respondent abandoned the agreement (see Tehan,
110 AD3d at 1499; Rosiny v Schmidt, 185 AD2d 727, 732, lv denied 80
NY2d 762), waived its right to redeem decedent’s shares (see Estate of
Kingston v Kingston Farms Partnership, 130 AD3d 1464, 1465), or agreed
to toll the time limitations of the agreement (see generally Beacon
Term. Corp. v Chemprene, Inc., 75 AD2d 350, 354, lv denied 51 NY2d
706). We therefore modify the order in appeal No. 2 accordingly.

     The court properly granted that part of respondent’s motion
seeking summary judgment dismissing the second cause of action, which
alleged that respondent breached an agreement with petitioner that was
reached orally in August 2011 and later confirmed in a letter in
January 2012. Respondent established as a matter of law that the
alleged agreement is unenforceable inasmuch as it amounted “ ‘to no
more than an agreement to agree’ ” (Anderson v Kernan, 133 AD3d 1234,
1235; see Joseph Martin, Jr., Delicatessen v Schumacher, 52 NY2d 105,
109-110).

     Finally, the court also properly granted that part of
respondent’s motion seeking summary judgment dismissing the third
cause of action, which sought relief under Business Corporation Law
§ 1104-a based upon respondent’s alleged oppressive conduct. As a
preliminary matter, we reject respondent’s contention that the court
                                 -3-                           873
                                                         CA 15-01772

erred in denying that part of its prior motion in appeal No. 1 seeking
summary judgment dismissing that cause of action based upon
petitioner’s alleged lack of standing under section 1104-a and in
granting that part of petitioner’s cross motion seeking summary
judgment dismissing the affirmative defense based upon lack of
standing. Respondent did not meet its burden of establishing its
entitlement to judgment with respect to petitioner’s lack of standing
(see Tehan, 110 AD3d at 1499). As the court properly concluded,
moreover, respondent is estopped from taking a position in this
proceeding contrary to the position taken in its tax returns that
decedent’s estate owned a 20% interest in respondent (see Mahoney-
Buntzman v Buntzman, 12 NY3d 415, 422; Matter of Frankel, 123 AD3d
826, 827-828). The court also properly concluded, however, that
respondent established its entitlement to judgment dismissing the
Business Corporation Law § 1104-a cause of action, and petitioner
failed to raise an issue of fact. Viewed in the light most favorable
to petitioner, the nonmoving party on this motion for summary judgment
(see Branham v Loews Orpheum Cinemas, Inc., 8 NY3d 931, 932), the
evidence established that respondent’s alleged conduct did not defeat
petitioner’s reasonable expectations or otherwise amount to oppressive
conduct within the meaning of the statute (see Orloff v Weinstein
Enters., 247 AD2d 63, 67; see generally Matter of Kemp & Beatley
[Gardstein], 64 NY2d 63, 72).




Entered:   November 10, 2016                    Frances E. Cafarell
                                                Clerk of the Court
