On December 10, 2024, the First Department issued a decision in Haruvi v. Hungerford, 2024 NY Slip Op. 06154, holding that fact that corporate landlord was in real estate business did not mean that BCL 909 did not govern the sale of substantially all of its real estate assets, explaining:
Plaintiff is a minority shareholder of Simry Realty Corp. She alleges that defendants violated Business Corporation Law § 909, which prohibits the sale of all or substantially all of a business’ assets, other than in the regular course of business, without certain procedural protections, including notice to each shareholder of record. The transaction at issue here divested Simry of its real property assets and left it with a 10% indirect ownership stake in those properties. We agree with plaintiff that this transaction was a sale or disposition subject to Business Corporation Law § 909(a). Furthermore, given that Simry’s sole business had been the ownership and operation of the residential properties, the sale of the properties was not in the ordinary course of its actual business, regardless of the fact that the certificate of incorporation provided that it could engage in real estate sales. In addition, as the motion court acknowledged, there are issues of fact as to what information plaintiff received about the transactions. Therefore, neither side was entitled to judgment on the causes of action under Business Corporation Law § 909. Accordingly, the notices of pendency should not have been cancelled at this stage.
(Internal citations omitted).