CHERRY GREEN PROPERTY CORP v. WOLF

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

CHERRY GREEN PROPERTY CORP., Plaintiff-Respondent, v. Florence WOLF, et al., Defendants-Appellants.

Decided: March 29, 2001

ROSENBERGER, J.P., WILLIAMS, ANDRIAS, WALLACH and SAXE, JJ. Dana M. Susman, for Plaintiff-Respondent. Robert F. Moraco, for Defendants-Appellants.

Judgment, Supreme Court, New York County (Ira Gammerman, J.), entered March 3, 2000, after a nonjury trial, insofar as appealed from, declaring that defendants shareholders' waiver of their right to dividends on their stock in plaintiff corporation is enforceable and binding on transferees of the shares, unanimously affirmed, with costs.

 Defendants' voluntary waiver of their right to share in plaintiff corporation's profits, in exchange for which defendants received a valuable contract to service plaintiff's real property, is enforceable.   Nothing in Business Corporation Law § 501(c), which requires that each share of stock be equal to every other share of the same class, prohibits such a waiver, and no public policy is otherwise implicated.   So long as there is no violation of public policy, a statutory right may be waived if made with knowledge of the right and the intention to waive it (see, People ex rel. McLaughlin v. Board of Police Commrs., 174 N.Y. 450, 456, 67 N.E. 78;  Hadden v. Consolidated Edison Co., 45 N.Y.2d 466, 469, 410 N.Y.S.2d 274, 382 N.E.2d 1136).   Defendants' waiver is also binding on their transferees.   The general rule is that in the absence of contrary provisions in the statute under which a corporation is organized or in its bylaws, a transferee of a corporation's shares takes with no greater rights and subject to the same liabilities as the transferor (see, Rochester & Kettle Falls Land Co. v. Raymond, 158 N.Y. 576, 582-583, 53 N.E. 507).   We reject defendants' argument that the general rule does not apply where, as here, all shares are of the same class.   Defendants' argument that their oral waiver is barred by the Statute of Frauds is not preserved for appellate review (see, Douglas Elliman-Gibbons & Ives v. Kellerman, 172 A.D.2d 307, 568 N.Y.S.2d 389, lv. denied 78 N.Y.2d 856, 574 N.Y.S.2d 937, 580 N.E.2d 409), and, we note, is based on a document not in evidence.