SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
March 31, 1969
IN THE MATTER OF JULIAN NELKIN ET AL., RESPONDENTS,
H. J. R. REALTY CORPORATION, APPELLANT
Concur -- Eager, J. P., Tilzer, McGivern, Nunez and McNally, JJ.
Order entered January 13, 1969, granting application to the extent of directing and scheduling a trial on the issues and denying respondents' motion for an order dismissing the petition, reversed, on the law, with $30 costs and disbursements, and the petition is dismissed. The petition fails to state a cause of action. Petitioners seek the dissolution of the corporation. The entire controversy stems from an agreement of shareholders made in 1941 which enabled shareholders who are tenants of property owned by the corporation to occupy space at a rental less than that applied to tenants who are not shareholders. If the agreement is valid and enforceable, there is no basis for dissolution. If, as contended by petitioners, the agreement is unenforceable because of a substantial change in circumstances, then the corporation may not be dissolved although the agreement, if construed as contended by petitioners, may possibly require the shareholders-tenants to pay a fair and reasonable rent or to take other action in the premises. (See Kruger v. Gerth, 16 N.Y.2d 802, affg. 22 A.D.2d 916.) This dismissal is without prejudice to any other action which petitioners may be advised to take.
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