Hayes v. Festa

—Order, Supreme Court, Queens County (John A. Milano, J.), entered on or about February 26, 1993, which, after a hearing before a Referee, granted respondents’ motion for an order confirming the Referee’s report and dismissed the petition with prejudice, with related relief, unanimously affirmed, without costs. The record supports the Referee’s conclusions that the subject corporations continued to operate during periods in which the two principals were not speaking directly to each other, as discussions were held via their sons and the companies’ comptroller, and that operation of the business continued, while negotiations on the division of assets came to a stalemate only because one side unilaterally ended negotiations and commenced this proceeding in the acknowledged hope of avoiding a more expensive buy-out of the other side: The record shows that the subject corporations could still function on a day-to-day basis (see, e.g., Matter of Kaplan [Med-Crest Mgt. Servs.] 78 AD2d 603). The Referee, who had the discretion to fashion relief as he saw fit (see, Grammas v 278 Charla, 45 AD2d 756), appropriately limited inquiry into post-petition occurrences without banning such evidence altogether. We have considered the petitioners’ remaining arguments, and find them to be without merit. Concur — Rosenberger, J. P., Asch, Rubin, Williams and Tom, JJ.