BARASCH v. Williams Corporate Realty Services, Ltd., et al., Respondents. (2012)

Order, Supreme Court, New York County (Bernard J. Fried, J.), entered on or about November 7, 2011, which, to the extent appealed from as limited by the briefs, granted petitioner an appraisal of the fair value of her shares in respondent Williams Real Estate Co., Inc. (Williams) and denied Williams' cross motion for summary judgment dismissing the petition as against it, unanimously affirmed, with costs.

Williams sent a formal notice to its shareholders, stating that a meeting would be held to consider “[t]he authorization ․ of the proposed disposition of substantially all of [its] assets ” (emphasis added). In reliance thereon, petitioner chose to exercise her appraisal rights under Business Corporation Law § 910(a) instead of, for example, seeking to enjoin the transaction. Hence, Williams is estopped from denying that it disposed of substantially all of its assets (see Matter of McKay v. Teleprompter Corp., 19 A.D.2d 815 [1st Dept 1963], appeal dismissed 13 N.Y.2d 1058 [1963] ).