Weksler v Weksler, 2011 NY Slip Op 05630 [85 AD3d 688]

June 30, 2011

Appellate Division, First Department

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Jonathan P. Harvey Law Firm, PLLC, Albany (Jonathan P. Harvey of counsel), for appellant.

Putney, Twonbly, Hall & Hirson LLP, New York (Thomas A. Martin of counsel), for respondents.

Order, Supreme Court, New York County (Richard B. Lowe, III, J.), entered January 22, 2010, which, in an action alleging minority shareholder oppression, denied plaintiff’s motion pursuant to Business Corporation Law § 1107, for leave to amend and replead, nunc pro tunc, the eleventh cause of action into a proceeding under the Business Corporation Law to comply with sections 1104-a, 1105, and 1106, and to sever that proceeding as amended and repleaded, unanimously affirmed, with costs.

Supreme Court’s denial of the motion and its directive that plaintiff may, if she chooses, commence a separate proceeding under Business Corporation Law § 1104-a in compliance with the applicable statutory requirements, was a provident exercise of discretion ( see Matter of WTB Props. , 291 AD2d 566, 567 [2002]). Defendants’ rights under the statutorily mandated timetable would have been unfairly prejudiced if the proposed amendment were permitted (Business Corporation Law § 1118). Contrary to plaintiff’s argument, the motion court was not required to convert the eleventh cause of action into a separate proceeding under CPLR 103 (c) ( cf. Matter of Nelkin v H. J. R. Realty Corp. , 25 NY2d 543, 547 n 2 [1969]). Concur—Tom, J.P., Saxe, Catterson, Moskowitz and Acosta, JJ..