Davis v. Alpha Packaging Industries, Inc.

Ordered that the judgment is affirmed insofar as appealed from, with costs. An election by a corporation to purchase the shares of a minority stockholder upon a petition for dissolution must be clear, unequivocal, and unconditional in order to relieve that stockholder of the burden of proving oppression (see, Matter of 385 Pace Photographers, 71 NY2d 737; Matter of Apple, 224 AD2d 1016). At bar, the so-called election was clearly conditioned on a finding by the court of grounds for dissolution. It was therefore properly treated as a nullity by the court which, after finding grounds for dissolution, fashioned the appropriate alternative remedy of directing that the petitioner’s shares be purchased for the sum of $816,120 (see, e.g., Wolff v Wolff, 112 AD2d 850; Matter of Wiedy’s Furniture Clearance Ctr. Co., 108 AD2d 81). With regard to valuation, the determination of a fact-finder as to the value of a business, if it is within the range of testimony presented, will not be disturbed on appeal where valuation of the business rested primarily on the credibility of the witnesses and their valuation techniques (see, Matter of North Star Elec. Contr.—N. Y. C. Corp., 174 AD2d 373; see also, Matter of Penepent Corp., 198 AD2d 782, 783). The trial court’s valuation of Alpha and of the petitioner’s shares is supported by the evidence. The respondents’ contrary interpretations of fact and the credibility of witnesses do not warrant disturbing the court’s determination. The respondents’ remaining contentions are without merit. Joy, J. P., Goldstein, McGinity and Feuerstein, JJ., concur.