Mariello v. Sovran Group, Inc.

Order unanimously affirmed with costs. Memorandum: Special Term correctly held that the stock sale and repurchase provisions of the parties’ shareholders’ agreement, which were triggered by petitioner’s termination from employment, do not, as a matter of law, bar petitioner’s proceeding to dissolve the corporation pursuant to Business Corporation Law § 1104-a. Because the agreement does not explicitly provide that the stock sale and repurchase provisions are the exclusive remedy available to a minority shareholder, a question of fact exists whether the "fair return on * * * investment” requirement of Business Corporation Law § 1104-a (b) (1) has been met (see, Matter of Pace Photographers [Rosen], 71 NY2d 737 , 747-748). (Appeal from order of Supreme Court, Erie County, Rath, J. — dismiss proceeding.) Present — Denman, J. P., Boomer, Green, Lawton and Davis, JJ.