The following e-filed documents, listed by NYSCEF document number (Motion 002) 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 48, 49 were read on this motion to/for REARGUMENT/RECONSIDERATION. DECISION + ORDER ON MOTION Upon the foregoing documents, Defendants Van Dale Industries, Inc., Maurice Setton, Albert Ades, Jimmie Ades, and Gabriel Ades (“Van Dale”) motion for leave to reargue their Motion to Dismiss the Complaint filed in this action by Plaintiff Alan Ades pursuant to CPLR 3211(a)(7), and upon reargument for an Order granting the motion to dismiss in its entirety and, in the alternative, for clarification from the Court with respect to the Decision and Order dated July 15, 2022, is decided as follows: Plaintiff commenced this action by filing a Summons and Complaint on November 12, 2021. Plaintiff alleges in his Complaint Causes of Action sounding in 1) breach of fiduciary duty / recission of the merger, 2) accounting and 3) damages. On August 23, 2021, Van Dale’s shareholders met and voted, among other things, to elect Jimmie, Gabriel, and Albert Ades to join Maurice on Van Dale’s Board of Directors. Also on August 23, 2021, a Notice of Meeting was delivered to the shareholders notifying all shareholders that a Special Meeting would be held on September 2, 2021, for the purpose of considering and voting on a proposal to approve a merger between Van Dale and Van Dale Industries, Corp., an entity owned by Jimmie, Gabriel, and Albert — not Plaintiff. Plaintiff was voted out but is entitled to the cash value of his shares. Plaintiff has not been paid for his shares under the merger agreement because Plaintiff has invoked his dissenter’s rights and has failed to tender his shares pursuant to the BCL. Plaintiff has commenced a separate appraisal proceeding to contest Van Dale’s valuation of his shares, which is currently pending before this Court. See, Alan Ades v. Van Dale Industries, Inc., 160305/2021. A motion to reargue is addressed to the sound discretion of the court and is designed to afford a party an opportunity to demonstrate that the court overlooked or misapprehended the relevant facts or misapplied controlling principles of law (see, Schneider v. Solowey, 141 AD2d 813 [2d Dept 1988]; Rodney v. New York Pyrotechnic Products, Inc., 112 AD2d 410 [2d Dept 1985]). A “motion to reargue is not an opportunity to present new facts or arguments not previously offered, nor it is designed for litigants to present the same arguments already considered by the court” (see, Pryor v. Commonwealth Land Title Ins. Co., 17 AD3d 434 [2d Dept 2005]; Simon v. Mehryari, 16 AD3d 664 [2d Dept 2005]). Upon review, the Court recognizes that its Decision and Order dated July 15, 2022, did not fully address the business purpose arguments before it, which is the crux of the issue. A minority shareholder such as Plaintiff seeking to rescind a freeze-out merger must overcome the general rule that “Courts will not interfere with the proper business judgment of directors in the absence of a showing of fraud, illegality, or self-dealing…so long as there is some proper corporate purpose for the merger other than the forced buy-out of the minority shares” (Alpert v. 28 Williams St. Corp., 63 NY2d 557, 573 [1984]). The Court recognizes that the merger very clearly has a legitimate business purposes — Plaintiff’s status as a non-employee shareholder of Van Dale posed significant conflicts of interest when dealing with A&E, a retail chain in which Plaintiff has been a 50 percent owner since the early 1970′s .These conflicts of interest are evident in Plaintiff’s withholding of information from Van Dale pertaining to A&E and Van Dale’s limitations in their collection efforts against A&E. While this Court may need to scrutinize this transaction with care for purposes of valuation, it will do so under Index # 160305/2021. ORDERED that Defendants’ Motion to leave to reargue is GRANTED; and upon reargument it is hereby ORDERED that this Court’s Decision and Order dated July 15, 2022, is WITHDRAWAN; and it is further ORDERED Defendants’ Motion to dismiss is GRANTED in its entirety. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION X GRANTED DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: July 12, 2023
