In re Wolf Popper Ross Wolf & Jones

In two Delaware actions, former minority shareholders of Pearce, Urstadt, Mayer & Greer, Inc. ("PUMG”) challenge the fairness of the cash-out merger of said corporation with Urstadt Property Co., Inc., under which they were to receive $12.50 per share. Pursuant to CPLR 3102 (e), applicant seeks documents concerning the value of HRE Properties, Inc. Although not a party to the Delaware actions, the value of HRE stock is central to the fairness of the price offered minority PUMG shareholders as more than one-half of the merged corporation’s total assets at the time of the merger was held in the form of HRE shares. Moreover, one Charles Urstadt was both controlling shareholder and manager of PUMG and chairman of the board of HRE at the time of the merger. Under Delaware law, the value of a shareholder’s interest is to be determined by consideration of various factors, including asset value, earning prospects and facts known or ascertainable at the time of the merger that shed light on the future prospects of the corporation (Weinberger v UOP, Inc., 457 A2d 701 [Del]). Non-party corporations, such as HRE, may be subject to disclosure concerning value if reasonable and necessary (Matter of B & F Towing & Salvage Co., 551 A2d 45, 51 [Del]). In the circumstances presented herein, disclosure as to *390elements of HRE’s value as of the time of the merger and of documents concerning transmitted of information by HRE to Charles Urstadt up until the time of the merger are relevant to the pending Delaware actions and not unduly burdensome to HRE (Matter of Brandes [Harris], 78 AD2d 638). Particularly in light of applicant’s withdrawal of its request for documents concerning rescissionary damages, however, the need or justification at this time for disclosure of documents generated after the date of the merger, is not apparent, and we accordingly, modify the order as indicated. Concur — Sullivan, J. P., Carro, Milonas, Asch and Rubin, JJ.