Fender v. Prescott — 64 N.Y.2d 1077

Majority

p. 1077

T. D. Fender, Respondent, v T. Gene Prescott, Appellant, et al., Defendant.

Argued March 21, 1985;

decided April 25, 1985

p. 1078

APPEARANCES OF COUNSEL

Owen McGivern, Allan R. Freedman and Beth A. Finley for appellant.

Edward N. Meyer, Robert E. Kushner and Vicki L. Dexter for respondent.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

Execution of a buy-sell agreement between plaintiff and defendant with respect to the stock of National Cold Storage Co.,

p. 1079

Inc., did not automatically release defendant from his obligation as a shareholder, officer and director of that close corporation not to co-opt a viable corporate opportunity of which he became aware in such capacities. There being, at least, a triable issue of fact concerning the viability of National’s negotiations for acquisition of Merchant’s Refrigerating Co., defendant’s motion for summary judgment as to that opportunity was properly denied.

Summary judgment was also properly denied defendant as to his acquisition of National Gypsum Company’s Gold Bond Division prior to execution of the buy-sell agreement. That National Cold Storage engaged in purchasing and operating cold storage facilities did not preclude its entry into other fields and the affidavits establish that it negotiated for acquisition of businesses widely diverse from cold storage. There are, therefore, triable issues of fact as to that acquisition as well.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander concur in memorandum.

Order affirmed, etc.