KINGSTON v. BRESLIN (2006)

In an action, inter alia, for a judgment declaring that the plaintiff is a shareholder of the defendant Atlantic-Heydt Corporation and its affiliates, the defendants appeal from a judgment of the Supreme Court, Westchester County (Rudolph, J.), entered October 29, 2004, which, after a nonjury trial, declared that the plaintiff is a 15% owner of the defendant Atlantic-Heydt Corporation and its affiliates.

ORDERED that the judgment is reversed, on the law, with costs, the defendants' motion for summary judgment is granted, the order of the Supreme Court, Westchester County, entered May 27, 2004, denying the defendants' motion for summary judgment is modified accordingly, and it is declared that the plaintiff is not a shareholder of the defendant Atlantic-Heydt Corporation and its affiliates.

The alleged oral agreement between the plaintiff and the defendant Michael Breslin, that the plaintiff was a 15% shareholder of the defendant Atlantic-Heydt Corporation and its affiliates, is not enforceable, since it violated UCC 8-319, the securities statute of frauds, which was in effect at all relevant times (see Hart v. Windjammer Barefoot Cruises, 220 A.D.2d 252, 632 N.Y.S.2d 100;  Dillon v. Peretti, 176 A.D.2d 497, 574 N.Y.S.2d 564).   The letters dated October 5, 1998, and March 25, 1999, respectively, did not give the plaintiff enforceable rights as claimed due to the failure to state, inter alia, the price of the shares to which the plaintiff purports to be entitled (see UCC 8-319;  Baytree Assoc. v. Forster, 240 A.D.2d 305, 659 N.Y.S.2d 19).

The defendants' remaining contentions are either without merit or have been rendered academic in light of our determination.