The following e-filed documents, listed by NYSCEF document numbers (Motion 003) 39, 40, 41, 42, 43, 44, 45, 46, 47, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, and 148 were read on this motion to AMEND CAPTION/PLEADINGS. The following e-filed documents, listed by NYSCEF document numbers (Motion 004) 92, 93, 94, 95, 96, 97, 98, 100, 101, 102, 103, 104, 105, 106, 107, 127, and 149 were read on this motion for SUMMARY JUDGMENT. DECISION + ORDER ON MOTION In this corporate ownership dispute, plaintiff George Kaloidis, now deceased, moves by order to show cause to substitute the estate of George Kaloidis (“George”) as plaintiff in this action; for summary judgment enforcing an alleged previously executed settlement agreement between the decedent and defendants Georgia Kaloidis (“Georgia”) and Paul Kerantzas (“Kerantzas”), acting as co-executors of defendant the estate of Dimitrios Kaloidis (the “Estate”); and for other reliefs (Mot. Seq. No. 003). Nonparty and proposed intervenor Sheepshead Restaurant Associates Inc. (“Sheepshead”) cross-moves, pursuant to CPLR 1012 and 1013, to intervene as a party. Additionally, the temporary administrator for the Estate, the Public Administrator of Nassau County, moves for summary judgment dismissing the complaint (Mot. Seq. No. 004). After the motions were submitted, by stipulation dated August 9, 2022, the parties stipulated to amend the caption to the action (stipulation, NYSCEF Doc. No. 91) and substitute James Kaloidis, as executor for George’s estate, as plaintiff (“plaintiff”), and the Public Administrator, as temporary administrator for the Estate, as defendant (“defendant”), which relief shall be addressed below. The remainder of motion sequence numbers 003 and 004 are consolidated for disposition in accordance with the following memorandum decision. Background Sheepshead was formed on May 4, 1984, by George and Dimitrios Kaloidis, Peter, George, and James Pantelidis, and two others (Sheepshead agreement, NYSCEF Doc. No. 59). The sole asset of Sheepshead is the real property located at 1901 Emmons Avenue, Brooklyn, New York (the “building”) (Pantelidis aff., NYSCEF Doc. No. 63, 6). Relevant to the instant action, the Sheepshead agreement provides that: the death of a Stockholder shall constitute an offer by his estate to sell all of the shares owned by the deceased Stockholder to the other Stockholders and to [Sheepshead] in the manner provided in Article 2 above. If all of the Stockholders do not exercise their option to accept the shares so offered, then [Sheepshead] shall be required to purchase all of the said shares, or to permit the sale of the shares to any qualified third party. (Sheepshead agreement, NYSCEF Doc. No. 59, §4[c][III].) Article 2 provides, inter alia, that “[i]n the event less than ALL of the Stockholders elect to purchase the Offeror’s stock, then [Sheepshead] shall have the right to purchase all of the Offeror’s stock” (id., §4[b][ii] [emphasis in original]). Prior to the death of Dimitrios Kaloidis, he owned 25% of Sheepshead, with George owning 50 percent and the three Pantelidis brothers owning 8.33 percent each (Pantelidis aff., NYSCEF Doc. No. 63, 7). Dimitrios Kaloidis died in 2019. Georgia and Kerantzas were named as co-executors of the estate. On July 14, 2021, the Surrogate’s Court, Nassau County, suspended the letters testamentary issued to Georgia (Surrogate’s Court order to show cause dated July 14, 2021, NYSCEF Doc. No. 9). On July 27, 2021, George commenced this action seeking to enforce the sale provisions of the Sheepshead agreement, and alleging claims for specific performance thereof and a declaratory judgment as to the value of Sheepshead’s shares (complaint, NYSCEF Doc. No. 2). During the pendency of this litigation, discussions took place between counsel for George and Kerantzas, then co-executor for the Estate regarding a potential sale of the Estate’s shares to George, which George characterized as an executed agreement. The court notes that Frank Livoti, Esq., purporting to act on the Estate’s behalf, never appeared in this action as counsel of record, and by his own admission only assisted in some matters involving the Estate before the Surrogate’s Court (Livoti affirmation, NYSCEF Doc. No. 94). On September 2, 2021, Livoti sent George’s counsel Alex Kleyman, Esq. an email captioned “Sheepshead Restaurant Associates — FOR SETTLEMENT PURPOSES ONLY” (September 2, 2021 email from Livoti to Alex Kleyman, NYSCEF Doc. No. 41 [emphasis in original]). Livoti suggested that the Estate would sell its shares to George for “$1,500,000 net,” and in return George would “assume responsibility for both his own and Dimitrios’ share of the first mortgage and any and all other liabilities of [Sheepshead] and indemnify and hold harmless the Estate for any such liabilities” (id.). The email provides no specifics as to what liabilities George was to assume outside of a “first mortgage,” and what liabilities he would need to indemnify the Estate against. Further, the email states that the offer “may be withdrawn at any time prior to acceptance,” and is “subject to the rights of the remaining shareholders as set forth in the [Sheepshead agreement]” (id.). On September 3, 2021, Kleyman wrote a letter to Livoti purporting to accept the offer. The letter contained no further details regarding the ambiguities set forth above, and added additional terms that had not been included in Livoti’s prior email (September 3, 2021 letter, NYSCEF Doc. No. 42). A few days later, Livoti wrote back and said, “ we have a deal,” but that changes needed to be made to the offer letter (September 7, 2021 email from Livoti to Kleyman, NYSCEF Doc. No. 43). Livoti avers that this email was excerpted out of a larger chain and does not reflect the Estate’s continued position that the terms of the Sheepshead agreement needed to be complied with (Livoti aff., NYSCEF Doc. No. 94, 11). On September 22, 2021, Sheepshead, in response to a letter Livoti sent to Sheepshead as well as all the shareholders, objected to the offer as violative of the Sheepshead agreement in several respects (Sheepshead letter, NYSCEF Doc. No. 95). Inter alia, the Pantelidis brothers did not accept the terms of the offer, and pursuant to the Sheepshead agreement, Sheepshead argued that it had the right to purchase the shares (id.). Shortly thereafter, Livoti, by letter dated September 29, 2021, and sent to all shareholders and Sheepshead, withdrew the offer (September 29, 2021 letter, NYSCEF Doc. No. 44). George took the position that the offer had already been accepted and could not be withdrawn. However, in early October 2021, George passed away (notice of George’s death, NYSCEF Do. By decision and order dated October 20, 2021, this court stayed the action, and denied, without prejudice to renewal, pending motions to transfer this matter to the Surrogate’s Court and to enforce the purported settlement agreement (decision and order, NYSCEF Doc. No. 37). While the matter was stayed, the letters testamentary issued to Kerantzas by the Surrogate’s Court were suspended, and the Public Administrator of Nassau County was appointed to administer the Estate (Surrogate’s Court order to show cause dated November 16, 2021, NYSCEF Doc. No. 83). On June 14, 2022, Surrogate’s Court, Queens County, issued a decree granting probate of George’s will, and issued letters testamentary to his son, James Kaloidis (decree granting probate, NYSCEF Doc. No. 46). The instant motion practice followed. Standard of Review Summary judgment is appropriate where there are no disputed material facts (Andre v. Pomeroy, 35 NY2d 361, 364 [1974]). The moving party must tender sufficient evidentiary proof to warrant judgment as a matter of law (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). “Failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers” (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986] [internal citations omitted]). Once a movant has met this burden, “the burden shifts to the opposing party to submit proof in admissible form sufficient to create a question of fact requiring a trial” (Kershaw v. Hospital for Special Surgery, 114 AD3d 75, 82 [1st Dept 2013]). “[I]t is insufficient to merely set forth averments of factual or legal conclusions” (Genger v. Genger, 123 AD3d 445, 447 [1st Dept 2014] [internal citation omitted]). Moreover, the reviewing court should accept the opposing party’s evidence as true (Hotopp Assocs. v. Victoria’s Secret Stores, 256 AD2d 285, 286-287 [1st Dept 1998]), and give the opposing party the benefit of all reasonable inferences (Negri v. Stop & Shop, 65 NY2d 625, 626 [1985]). Therefore, if there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied (Rotuba Extruders v. Ceppos, 46 NY2d 223, 231 [1978]). Discussion For the reasons stated below, the court denies plaintiff’s motion for summary judgment and grants defendant’s motion for summary judgment dismissing the case. Plaintiff is not entitled to summary judgment enforcing the purported settlement agreement. As an initial matter, the purported agreement is not an “in open court” settlement as argued by plaintiff. CPLR 2104 provides that “[a]n agreement between parties or their attorneys relating to any matter in an action, other than one made between counsel in open court, is not binding upon a party unless it is in a writing subscribed by him or his attorney or reduced to the form of an order and entered.” To be considered an “open court” settlement, the matter must have been heard before the judge presiding over the matter, and then further recorded or memorialized and filed with the County Clerk (Harrison v. NYU Downtown Hosp., 117 AD3d 479 [1st Dept 2014] ["This matter was settled in 'open court' where, following negotiations in the trial-ready part with the assistance of the presiding judge, the part notified the County Clerk, who marked the matter 'settled…$85,000'"]). Here, notwithstanding that Livoti has never appeared in this matter, the parties did not negotiate and place on the record the terms of their purported settlement, nor was same filed with the County Clerk. Further, any agreement to sell shares of a closely held corporation whose only asset is real property, such as Sheepshead, is governed by the Statute of Frauds (Pritsker v. Kazan, 132 AD2d 507, 507 [1st Dept 1987]). Pursuant to the Statute of Frauds, “[a] contract…for the sale, of any real property, or an interest therein, is void unless the contract or some note or memorandum thereof, expressing the consideration, is in writing, subscribed by the party to be charged, or by his lawful agent thereunto authorized by writing” (General Obligations Law §5- 703). The purported agreement to sell the estate’s shares was never reduced to a writing, and nowhere in the record is there a writing signed by Kerantzas, the then-executor of the Estate, or a writing authorizing Livoti to bind the Estate to such an agreement. In the absence of either writing, no valid contract was made (Nesbitt v. Penalver, 40 AD3d 596, 599 [2d Dept 2007] ["There was no evidence that the defendant's attorney had been authorized in writing to bind her to any contract as her agent"]). Therefore, plaintiff cannot establish prima facie entitlement to summary judgment, and his motion must be denied. Turning to defendant’s motion for summary judgment dismissing the complaint, the terms of the Sheepshead agreement indicate that only a living shareholder, or Sheepshead itself, can purchase the shares of a deceased shareholder. As set forth above, “[t[he death of a Stockholder shall constitute an offer by his estate to sell all of the shares owned by the deceased Stockholder to the other Stockholders and to [Sheepshead]” (Sheepshead agreement, NYSCEF Doc. No. 59, §4[c][III]). George is now a deceased shareholder, and the terms of the Sheepshead agreement do not provide that the estate of a deceased shareholder may purchase Sheepshead stock; only to sell it to the remaining shareholders (id.). While George had the right to enforce the Sheepshead agreement when he was alive, his claim has been mooted due to his death. Thus, the complaint fails to state a cause of action for specific performance of the Sheepshead agreement. Plaintiff, in opposition, fails to raise a material issue of fact requiring trial. The bulk of plaintiff’s opposition is devoted to perceived deficiencies with Livoti’s affirmation, which deficiencies are not relevant to plaintiff’s rights, or lack thereof, under the Sheepshead agreement. Plaintiff does argue that because the purported settlement agreement was executed during George’s lifetime, plaintiff should be able to enforce it. However, as set forth above, no valid contract was formed during George’s lifetime. Defendant freely admits that George could have purchased the shares if an agreement to sell them was made during his lifetime (Def.’s reply memorandum of law, NYSCEF Doc. No. 127 at 8). In the absence of such an agreement, the transfer of shares is governed by the Sheepshead agreement. Finally, plaintiff asserts that Sheepshead cannot purchase the shares because Sheepshead does not have a separate existence except as governed by the shareholders, and he would have to consent to any sale as majority shareholder. However, “a corporation has a separate legal existence from its shareholders” (Baccash v. Sayegh, 53 AD3d 636, 639 [2d Dept 2008]), and “[a]n agreement for the purchase by a corporation of its own shares shall be enforceable by the shareholder and the corporation” (Business Corporation Law §514[a]). In any event, following George’s passing, plaintiff no longer needs consent to any sale of shares to Sheepshead, as plaintiff must now offer George’s shares for sale. Finally, as the court is granting summary judgment to defendant dismissing the action, Sheepshead’s cross-motion to intervene in the action is moot, as there is no longer an action in which to intervene. Accordingly, it is hereby ORDERED that so much of plaintiff’s motion (Mot. Seq. No. 003) to substitute the Estate of George Kaloidis is granted, and that James Kaloidis, as executor of the Estate of George Kaloidis, deceased, be substituted as plaintiff in the above-entitled action in the place and stead of the plaintiff, George Kaloidis, without prejudice to any proceedings heretofore had herein; and it is further ORDERED that all papers, pleadings, and proceedings in the above-entitled action be amended by substituting the name of James Kaloidis, as executor of the Estate of George Kaloidis, deceased, as plaintiff in the place and stead of said decedent, without prejudice to the proceedings heretofore had herein; and it is further ORDERED, pursuant to the stipulation of the parties, that the Public Administrator of Nassau County, as Temporary Administrator of the Estate of Dimitrios Kaloidis, be substituted as defendant in the above-entitled action in the place and stead of Georgia Kaloidis and Paul Kerantzas, Co-Executors of the Estate of Dimitrios Kaloidis, without prejudice to any proceedings heretofore had herein; and it is further ORDERED that all papers, pleadings, and proceedings in the above-entitled action be amended by substituting the name of the Public Administrator of Nassau County, as Temporary Administrator of the Estate of Dimitrios Kaloidis, as defendant in the place and stead of said Co- Executors, without prejudice to the proceedings heretofore had herein; and it is further ORDERED that the action shall henceforth be captioned as follows: JAMES KALOIDIS, as Executor for the Estate of George Kaloidis, deceased, Plaintiff, v. PUBLIC ADMINISTRATOR OF NASSAU COUNTY, as Temporary Administrator for the Estate of Dimitrios Kaloidis, Defendant; 654632/2021 X”; and it is further ORDERED that counsel for plaintiff shall serve a copy of this order with notice of entry upon the Clerk of the Court and the Clerk of the General Clerk’s Office, who are directed to amend their records to reflect such change in the caption herein; and it is further ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk’s Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the “EFiling” page on the court’s website)]; and it is further ORDERED that the stay of the action previously imposed by this court (decision and order, NYSCEF Doc. No. 37) is hereby lifted; and it is further ORDERED that so much of plaintiff’s motion (Mot. Seq. No. 003) as seeks summary judgment enforcing a purported agreement is denied; and it is further ORDERED that defendant’s motion for summary judgment dismissing the complaint is granted, and the Clerk of the Court is directed to enter judgment in favor of defendant dismissing the action; and it is further ORDERED that Sheepshead’s cross-motion to intervene is dismissed as moot. This constitutes the decision and order of the court. CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION GRANTED DENIED X GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: April 25, 2023
