AINI v. GARAU (1997)

In an action, inter alia, to recover damages for breach of contract, the defendants Emile Garau, Ismael Jedouance, CCI, and REC appeal from an order of the Supreme Court, Kings County (Held, J.), dated October 18, 1996, which, inter alia, (1) granted the plaintiffs' cross motion pursuant to Business Corporation Law § 619 to set aside the election of directors pursuant to a shareholders meeting of the defendants Ultraclear Beauty Products, Inc., and Topiclear Beauty Products, Inc., and (2) directed that the plaintiff Jacob Aini may vote 66 2/3 of the shares of the defendants Ultraclear Beauty Products, Inc., and Topiclear Beauty Products, Inc.

ORDERED that the order is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Kings County, for further proceedings in accordance herewith.

Since limitations on the right to vote were not mentioned in the certificate of incorporation, each of the shareholders had an equal voting share in Topiclear Beauty Products, Inc., and Ultraclear Beauty Products, Inc. (see, Business Corporation Law § 612[a] ).   However, since the record is insufficient to make a determination as to whether the defendant Simon Mamane sold his shares to Societe Internationale de Cosmetiques, a French corporation, or to the plaintiff Jacob Aini, we remit the matter to the Supreme Court for a hearing and, upon completion, a new determination of the plaintiffs' cross motion.

MEMORANDUM BY THE COURT.