IN RE: Petition of Carol M. Luttati

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

IN RE: Petition of Carol M. Luttati, for the DISSOLUTION OF HONECKER & LUTTATI, P.C., etc., Carol M. Luttati, Appellant, Ernest Honecker, Respondent.

Decided: April 25, 2000

ROSENBERGER, J.P., NARDELLI, TOM, WALLACH and SAXE, JJ. Jeffrey M. Duban, for Appellant. Warren A. Schneider, for Respondent.

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered November 23, 1999, which, inter alia, dismissed the Business Corporation Law § 1104 petition for judicial dissolution of the subject corporation and denied leave to amend the petition to state a claim under Business Corporation Law § 1104-a, unanimously affirmed, without costs.

Pursuant to the properly confirmed finding of a special referee, it was determined that petitioner was only a 30% shareholder in the tax law professional corporation in which respondent was a 70% owner.   Accordingly, petitioner did not meet the 50% ownership requirement for bringing a petition for judicial dissolution due to internal dissension under Business Corporation Law § 1104(a)(3).   Leave to amend the petition to state a cause of action for oppressive conduct pursuant to Business Corporation Law § 1104-a, which confers standing to seek dissolution on those possessing a 20% ownership interest in the subject corporation, was properly denied for petitioner's failure to set forth with the requisite particularity the essential facts constituting the purportedly oppressive conduct (see, Guthartz v. City of New York, 84 A.D.2d 707, 708, 443 N.Y.S.2d 841, appeal dismissed 62 N.Y.2d 632, 476 N.Y.S.2d 111, 464 N.E.2d 479).   The original petition focused on irreconcilable differences and animosity, which, while sufficient for a judicial dissolution under § 1104, did not satisfy the conditions of either oppressive conduct or looting set forth in § 1104-a.