Opinion
May 7, 1996
Appeal from the Supreme Court, New York County (Beatrice Shainswit, J.).
The alleged oral contract violates the Statute of Frauds of both General Obligations Law § 5-701 (a) (1) and UCC 8-319. None of the written statements or bills satisfy the writing requirement of the statutes inasmuch as they do not establish a contractual relationship between the relevant parties ( see, Intercontinental Planning v. Daystrom, Inc., 24 N.Y.2d 372, 379).
As to the derivative claim based upon alleged breaches of fiduciary duties, since an inherent conflict exists, plaintiff Mizel lacks standing to bring such an action ( see, G.A. Enters. v. Leisure Living Communities, 517 F.2d 24; Youngman v. Tahmoush, 457 A.2d 376, 379 [Del. Ch. 1983]). We also find that the derivative claim fails to meet the requirements of CPLR 3016 (b) ( see, Lanzi v. Brooks, 43 N.Y.2d 778, 780).
Leave to replead was properly denied since the proposed new pleading simply mirrors the original pleading. We have considered plaintiffs' remaining contentions and find them to be without merit.
Concur — Murphy, P.J., Wallach, Ross and Williams, JJ.