IN THE MATTER OF GARY D. GOLDBERG, APPELLANT, v. ANDREW M. HARWOOD, ET AL.,
RESPONDENTS.
88 N.Y.2d 911, 669 N.E.2d 821, 646 N.Y.S.2d 663 (1996).
June 11, 1996
1 No. 145 (1996 NY Int. 131)
Decided June 11, 1996
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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Steven R. Miller, for Appellant.
Jeffrey D. Taub, for Respondent landlord/creditor.
Andrew M. Harwood, pro se, Respondent.
MEMORANDUM:
The judgment appealed from and order of the Appellate Division
brought up for review should be affirmed, with costs.
Subsequent to arbitration, a judgment of dissolution was issued for
the corporate respondent which provided for a public sale of the
corporate assets. The "Terms of Sale" identified the lease of the
premises where the corporation conducted business as one of the
assets. At the time of the sale, the corporate tenant had defaulted in
the payment of rent due under the lease. Prior to the sale, the
landlord advised the referee appointed to conduct the sale that it was
a creditor of the corporation for the balance due under the lease.
Respondent Harwood, the highest bidder at the auction, purchased all
of the corporate assets. Petitioner, formerly a 50% shareholder in the
corporation, moved to vacate the sale and declare Harwood an assignee
of the lease. Thereafter, the landlord filed a motion, pursuant to
Business Corporation Law § 1007, asserting a claim for the balance due
under the lease. The courts below denied petitioner's motion to vacate
the sale, declined to find Harwood an assignee of the lease, and
granted the landlord's motion directing the referee to pay the
landlord $209,846.80 out of the sale proceeds in settlement of its
claim.
Under the circumstances, the landlord was entitled to enforce its
claim as creditor against the assets of the dissolved corporation, and
the referee properly ordered satisfaction of this claim from the sale
proceeds.
SNIPPETS:
This memorandum is uncorrected and subject to revision before publication in the New York
Steven R. Miller, for Appellant.
Jeffrey D. Taub, for Respondent landlord/creditor.
Andrew M. Harwood, pro se, Respondent.
a judgment of dissolution was issued for the corporate respondent which provided for a public
The "Terms of Sale" identified the lease of the premises where the corporation conducted
the landlord advised the referee appointed to conduct the sale that it was a creditor of the
Thereafter, the landlord filed a motion, pursuant to Business Corporation Law § 1007,
The courts below denied petitioner's motion to vacate the sale, declined to find Harwood an
Judgment appealed from and order of the Appellate Division brought up for review affirmed,
Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.
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