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Business Corporation Law § 1008. cont

Regardless of whether Supreme Court correctly vacated the stipulations that are the subject of this appeal, the stipulations have been vacated and this appeal is moot because the rights of the parties cannot be affected by a determination of this appeal. Because the appeal has been rendered moot we cannot and do not pass on the issues presented.

The dissent asserts that by ruling that the intervening order implicitly vacates the order on appeal, we thereby pass on a substantive issue and render an advisory opinion construing both the status of the order appealed from and the effect of an order not even before us. As is obvious from our decision, we pass on no substantive issues relating to the rights of the parties. Equally as obvious, we are not rendering an advisory opinion construing both the status of the order appealed from and the effect of an order not even before us. Rather, we simply conclude that the order on appeal is moot and therefore the appeal must be dismissed. Of course, we first conclude that the order vacating the stipulations implicitly vacates the order on appeal. But that conclusion merely reflects the exercise of our jurisdiction to determine our jurisdiction.

The dissent states that by moving to vacate the stipulations, personal injury defendants unilaterally prevented this Court from deciding whether the motion court erred in vacating what appears to be a valid agreement between the parties. In the first place, however, defendants took no unilateral action. Defendants made a motion on notice to vacate the stipulations, a motion Supreme Court granted. Second, this Court is not precluded from determining whether the stipulations are valid. To the contrary, we may determine that precise issue should plaintiff perfect his appeal from the order vacating the stipulations.

The dissent posits that vacating the stipulations does not invalidate the order on appeal, which is not dependent on the parties’ agreement but rests on an independent statutory basis. The setting of a fair price under Business Corporation Law § 623 is a matter entrusted to Supreme Court’s discretion, which encompasses the acceptance or rejection of expert opinions. Thus, Supreme Court’s decision to regard all three appraisals as reasonable assessments of the value of the properties, based on the value of comparable properties in the vicinity of similar size and usage, and to give probative weight to each was well within the exercise of judicial discretion. In short, the validity of the parties’ agreement is immaterial to the court’s power to determine the value of the subject properties under the Business Corporation Law.

Neither of the parties cited (let alone discussed) Business Corporation Law § 623, and neither party argued that the validity of the parties’ agreement is immaterial to the court’s power to determine the value of the subject properties. To the contrary, both medical parties regard the validity and interpretation of the agreement, i.e., the January 29, 2007 stipulation, as essential to the determination of their rights. The dissent does not discuss how its reliance on Business Corporation Law § 623 is consistent with orderly appellate procedure or its recognition that parties are normally permitted to chart their own procedural course before the courts.
The appeal should be dismissed for another reason-it is from a suasponte order from which no appeal lies. In Sholes the Court of Appeals addressed the issue of the appealability of suasponte orders. There, an attorney was sanctioned by Supreme Court for engaging in frivolous conduct in the course of a personal injury case. From the bench the trial court gave the parties a briefing schedule, requiring the attorney to submit an affidavit explaining why she should not be sanctioned for her conduct and directing her adversary to submit an affidavit detailing his costs and expenditures at trial. After both sides submitted papers, the trial court ordered the attorney to pay her adversary approximately $14,000. The attorney appealed to the Second Department, which dismissed the appeal because the order imposing sanctions did not decide a motion made on notice.

To Be Cont…

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