OSTAD v. OSTAD (1997)

Supreme Court, Appellate Division, First Department, New York.

Fred OSTAD, Plaintiff-Respondent, v. Shmouiel OSTAD, et al., Defendants-Appellants.

Decided: December 16, 1997

Before MURPHY, P.J., and SULLIVAN, MILONAS, MAZZARELLI and ANDRIAS, JJ.

Avrom R. Vann, for plaintiff-respondent. Martin B. Cunningham, for defendants-appellants.

Order, Supreme Court, New York County (Herman Cahn, J.), entered September 16, 1996, which granted plaintiff's motion for summary judgment and dismissed defendants' counterclaims, unanimously affirmed, with costs.

Defendants fail to present any evidence supporting their claim that plaintiff had notice of the restrictions contained in the stock certificate, which plaintiff was never given (cf., Menaker v. Padover, 75 A.D.2d 807, 427 N.Y.S.2d 495, lv. denied, lv. dismissed 50 N.Y.2d 926, 431 N.Y.S.2d 525, 409 N.E.2d 997). Nor can such notice be inferred from the shareholders agreement defendants seek to enforce, where plaintiff and his father were issued new shares directly from the corporation and were not signatories to the agreement (see, Fiore v. Fiore, 46 N.Y.2d 971, 415 N.Y.S.2d 826, 389 N.E.2d 138).

MEMORANDUM DECISION.

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