Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered February 24, 2010, which, insofar as appealed from as limited by the briefs, denied defendant Laura Mercier's motion for summary judgment dismissing the third cause of action for breach of contract and the sixth cause of action for legal fees, unanimously affirmed, with costs.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Andrias, J.P., Saxe, Sweeny, Nardelli, Catterson, JJ.
The court properly found that, while Mercier did not demonstrate that a vote taken at a special shareholders' meeting, which resulted in the passage of a resolution calling for a transfer tax, was invalid or improper, questions of fact exist in this regard, including those involving witness credibility (see e.g. Welch v Riverbay Corp., 273 AD2d 66 ). Furthermore, material issues of fact must be resolved before any determination can be made regarding Mercier's claims based on waiver and estoppel (see Fundamental Portfolio Advisors, Inc. v Tocqueville Asset Mgt., L.P., 7 NY3d 96, 105-106 ). In view of the foregoing, the court properly denied Mercier's request to dismiss the cause of action seeking legal fees.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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