IN RE: Application of Yoav BITTER (2000)

Judgment, Supreme Court, New York County (Emily Goodman, J.), entered July 26, 1999, dismissing petitioner's application for judicial dissolution of the subject corporation, unanimously affirmed, without costs.   Appeal from order, same court and Justice, entered July 1, 1999, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Petitioner, one of three shareholders in the subject corporation who owns 25% of its stock, fails to show that the conduct of the other two shareholders defeated any of his expectations that, objectively viewed, were reasonable under the circumstances (see, Matter of Kemp & Beatley [Gardstein], 64 N.Y.2d 63, 73, 484 N.Y.S.2d 799, 473 N.E.2d 1173).   Petitioner, who had been employed by the corporation for less than two years in a nonmanagerial, at-will position (compare, e.g., Matter of Williamson, Picket, Gross [Williamson], 259 A.D.2d 362, 687 N.Y.S.2d 53), could not have had any reasonable expectations of job security or of a right to participate in the corporation's management in view of the shareholders' agreement of April 13, 1998.   That agreement was a preliminary arrangement that noted the corporation's recent acquisition by petitioner and the other two shareholders, made all matters of corporate governance subject to an affirmative vote of other two shareholders and gave the latter the right to repurchase petitioner's shares at their initial purchase price if petitioner did not agree to terms to be set forth in a so-called definitive agreement.   In effect, the period between the preliminary and definitive agreements was a trial period during which the other two shareholders were to decide whether they wanted to pursue the venture with petitioner as a participant, and, if so, on what terms.   They offered petitioner terms, petitioner rejected them, and now they have the right to repurchase petitioner's shares (see, Ingle v. Glamore Motor Sales, 73 N.Y.2d 183, 538 N.Y.S.2d 771, 535 N.E.2d 1311;  Branciforte v. Levey, 222 A.D.2d 276, 635 N.Y.S.2d 22).

MEMORANDUM DECISION.