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In re Empire State Realty Trust, Inc. Investor Litigation

Supreme Court of New York, First Department

February 25, 2014

In re Empire State Realty Trust, Inc. Investor Litigation Leon Meyers, et al., Plaintiffs-Respondents,
v.
Mary Jane Fales, et al., Intervenor Plaintiffs-Appellants, Malkin Holdings L.L.C., et al., Defendants-Respondents.

Meister Seelig & Fein LLP, New York (Stephen B. Meister of counsel), for appellants.

Wolf Haldenstein Adler Freeman & Herz LLP, New York (Lawrence P. Kolker of counsel), for Leon Meyers, Laurence Reinlieb, Susan Bandler, Joseph Weiss and Steven Keenholtz, respondents.

Dewey Pegano & Kramarsky LLP, New York (Thomas E.L. Dewey of counsel), for the Malkin respondents.

Ronald S. Rolfe, New York, for the Estate of Leona M. Helmsley, respondent.

Gonzalez, P.J., Andrias, Saxe, Richter, Clark, JJ.

Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered April 30, 2013, which denied appellants' application for a judicial declaration that a contractual buyout provision violates New York's Limited Liability Company Law, unanimously affirmed, without costs.

In this action relating to participation agreements entered into by the partners of Empire State Building Associates (ESBA) pursuant to which they each syndicated their beneficial interests in ESBA into 1, 100 "Participation Interests, " which were sold to more than 3, 000 passive investors, appellants, who are ESBA participants with a fractional ownership interest in an ESBA membership interest, maintain that the buyout provisions contained in the participation agreements are invalid and unenforceable under Limited Liability Company Law § 1002 because they deprive dissenting investors of their statutorily guaranteed right to the "fair value" of their interests. The motion court properly denied appellants' application for a declaration that the buyout provisions violate the Limited Liability Company Law since appellants are not "members" in the limited liability company who are entitled to the fair value appraisal protections set forth in § 1002(f).

We have considered the parties' additional arguments and find them unavailing.


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