Opinion
December 21, 1967
Order entered January 21, 1966, denying defendants-appellants' motion to cancel certain notices of lis pendens unanimously reversed, upon the law, with $30 costs and disbursements to defendants-appellants, and motion granted. The complaint alleges that certain shares of stock in Fulcrum Corporation, a nonmoving defendant, are being wrongfully withheld from plaintiff by that company and the individual defendants, and plaintiff seeks issuance and delivery to him. He further alleges that certain described real properties held by the moving defendants were improved and maintained with assets rightly belonging to Fulcrum. This is not a sufficient allegation that "the title to, or the possession, use or enjoyment of, real property" would be affected by the outcome of the action. A person claiming a right to be a stockholder has neither the title nor right to possession to realty which he alleges should be in the name of the corporation ( Whittemore v. De Pasquale, 8 A.D.2d 793). Here there is not even a clear allegation that the corporation has a right to either title or use.
Concur — Botein, P.J., Stevens, Eager, Steuer and McNally, JJ.