IN RE: Norberto RUIVO

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

IN RE: Norberto RUIVO, etc., Respondent; Brightside Homes, Ltd., etc., Appellant.

Decided: May 27, 2003

SANDRA J. FEUERSTEIN, J.P., LEO F. McGINITY, THOMAS A. ADAMS and STEPHEN G. CRANE, JJ. Irwin Popkin, Shirley, NY, for appellant. William P. Griffin III, Central Islip, NY, for respondent.

In a proceeding pursuant to Business Corporation Law § 1104(a) for judicial dissolution of a closely-held corporation, Brightside Homes, Ltd., appeals from an order of the Supreme Court, Suffolk County (Costello, J.), dated May 8, 2002, which, inter alia, denied its motion to dismiss the proceeding for lack of standing.

ORDERED that the order is modified by adding a provision thereto directing the publication of an amended order to show cause in compliance with Business Corporation Law § 1106(b);  as so modified, the order is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Suffolk County, for further proceedings consistent herewith.

 The appellant, Brightside Homes, Ltd., a domestic corporation, raised an objection in point of law (see CPLR 404[a] ) challenging the standing of the petitioner to bring this proceeding.   The corporation failed to establish lack of standing with any admissible evidence.   The petitioner's efforts to establish his standing were mired in confusion and unexecuted documents.   Thus, he, too, failed to resolve the issue of his standing with admissible evidence.   Accordingly, the Supreme Court correctly found that further disclosure and a hearing were necessary to determine whether the petitioner is a 50% shareholder of the corporation and therefore has standing to commence this proceeding for dissolution (see Business Corporation Law § 1104[a];  Matter of Broder, 265 A.D.2d 218, 219, 696 N.Y.S.2d 459;  Matter of Fancy Windows & Doors Mfg. Corp., 244 A.D.2d 484, 664 N.Y.S.2d 113;  Matter of Kournianos, 175 A.D.2d 129, 571 N.Y.S.2d 823).

 Contrary to the corporation's contention, made for the first time on appeal, the failure of the order to show cause to provide for its publication was not fatal to the petition at this stage of the proceeding (see Business Corporation Law §§ 1106, 1107;  Matter of WTB Props., 291 A.D.2d 566, 737 N.Y.S.2d 654).   Accordingly, we modify the order appealed from by adding a provision thereto directing the publication of an amended order to show cause in accordance with Business Corporation Law § 1106(a).

The corporation's remaining contentions are without merit.

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