Opinion
14746 Index No. 161605/19 Case No. 2021-00689
12-02-2021
Felix GLAUBACH, individually and in his capacity as a Board Member of Personal Touch Holding Corp., Plaintiff–Appellant, v. Graubard MILLER et al., Defendants–Respondents.
Andrew Lavoott Bluestone, New York, for appellant. Akerman LLP, New York (David F. Bayne of counsel), for respondents.
Andrew Lavoott Bluestone, New York, for appellant.
Akerman LLP, New York (David F. Bayne of counsel), for respondents.
Gische, J.P., Kapnick, Kern, Gesmer, Kennedy, JJ.
Order, Supreme Court, New York County (Barry R. Ostrager, J.), entered on or about February 26, 2021, which granted defendants’ motion to dismiss the complaint, unanimously affirmed, without costs.
Plaintiff, who sues individually and in his capacity as a board member of Personal Touch Holding Corp., lacks standing to commence this action. The complaint, which asserts a single cause of action for legal malpractice, is premised on defendants’ allegedly deficient pleading of causes of action under Business Corporation Law § 720. Any BCL 720 causes of action, however, belonged to the corporation, not to plaintiff as an individual. Thus, only the corporation has standing to sue for legal malpractice arising from those causes of action (see Walker v. Saftler, Saftler & Kirschner, 239 A.D.2d 252, 252, 657 N.Y.S.2d 187 [1st Dept. 1997] ), and plaintiff does not dispute that he has failed to plead the pre-suit requirements necessary to sue derivatively on behalf of the corporation under Business Corporation Law § 626 (see Griffith v. Medical Quadrangle, Inc., 5 A.D.3d 151, 152, 772 N.Y.S.2d 513 [1st Dept. 2004] ). Furthermore, plaintiff's payment of legal fees does not confer standing on him (see Priest v. Hennessy, 51 N.Y.2d 62, 69–70, 431 N.Y.S.2d 511, 409 N.E.2d 983 [1980] ; Kalish v. Lindsay, 47 A.D.3d 889, 891, 850 N.Y.S.2d 599 [2d Dept. 2008] ).