Matter of Magarik v Kraus USA, Inc., 2024 NY Slip Op 04964 [231 AD3d 831]
October 9, 2024
Appellate Division, Second Department
[*1]
In the Matter of Sergio Magarik, Appellant,
v
Kraus USA, Inc., et al., Respondents.
Westerman Ball Ederer Miller Zucker & Sharfstein, LLP, Uniondale, NY (Jeffrey A. Miller of counsel), for appellant.
Fox Rothschild LLP, New York, NY (Ernest E. Badway and Mitchell Berns of counsel), for respondents.
In a proceeding, inter alia, pursuant to Business Corporation Law § 1104-a for the judicial dissolution of a closely held corporation, where there has been an election to purchase the shares owned by the petitioner pursuant to Business Corporation Law § 1118, the petitioner appeals from (1) a decision of the Supreme Court, Nassau County (Vito M. DeStefano, J.), entered April 28, 2020, (2) an amended decision of the same court entered May 19, 2020, and (3) a judgment of the same court entered May 26, 2020. The judgment, upon the decisions, made after a hearing, among other things, adjudged that the fair value of the petitioner’s shares of stock in Kraus USA, Inc., was $1,379,400.
Ordered that the appeals from the decisions are dismissed, as no appeal lies from a decision ( see Schicchi v J.A. Green Constr. Corp. , 100 AD2d 509 [1984]); and it is further, Ordered that the judgment is affirmed; and it is further, Ordered that one bill of costs is awarded to the respondents.
The petitioner was a 24% shareholder in the respondent Kraus USA, Inc. (hereinafter Kraus), a closely held corporation that sold, through retailers, plumbing fixtures manufactured by other companies. The petitioner commenced this proceeding, inter alia, pursuant to Business Corporation Law § 1104-a for the judicial dissolution of Kraus. After Kraus’s other shareholders elected to purchase the petitioner’s shares of stock ( see id. § 1118 [a]), a valuation hearing was held to determine their fair value. After the hearing, the Supreme Court entered a judgment valuing Kraus at $6,050,000 and the fair value of the petitioner’s shares of stock in Kraus at $1,379,400. The petitioner appeals.
“The determination of a factfinder as to the value of a business, if it is within the range of the testimony presented, will not be disturbed on appeal where the valuation rests primarily on the credibility of the expert witnesses and their valuation techniques” ( Matter of Derderian v [*2] Nissan Lift of N.Y., Inc. , 192 AD3d 1021 , 1022 [2021] [internal quotation marks omitted]; see Matter of Wright v Irish , 156 AD3d 803 , 803 [2017]; Matter of Adelstein v Finest Food Distrib. Co., N.Y., Inc. , 116 AD3d 850 , 851 [2014]). Here, contrary to the contention of the petitioner, the Supreme Court’s determination as to the fair value of the petitioner’s shares of stock in Kraus is supported by the evidence ( see Matter of Adelstein v Finest Food Distrib. Co., N.Y., Inc. , 116 AD3d at 851). Iannacci, J.P., Maltese, Wan and Mccormack, JJ., concur..