Since plaintiff is suing defendants not in their capacity as directors but as shareholders, it was not required to plead that defendants committed independent tortious acts ( see Fletcher v. Dakota, Inc., 99 A.D.3d 43, 47, 50, 948 N.Y.S.2d 263 [1st Dept.2012] [“participation in a breach of contract will typically not give rise to individual director liability” unless the director commits an independent tort [emphasis added] ). Because plaintiff is not suing defendants as directors or officers, defendants are not entitled to indemnification pursuant to Article VII of the nominal defendant's by-laws ( see 511 W. 232nd Owners Corp. v. Jennifer Realty Co., 10 A.D.3d 573, 573, 782 N.Y.S.2d 423 [1st Dept.2004] [allowing indemnification only for cause of action “relat[ing] to the individual defendants' status as officers or directors of the cooperative”] ). The by-laws state in plainly understood terms that the nominal defendant may have between three and seven directors and that the shareholders shall decide on the number of directors.

834 Riverside may maintain a cause of action for indemnification based on Fernandez' alleged breach of fiduciary duty as an officer and director of the cooperative. See 511 West 232nd Owners Corp. v Jennifer Realty Company, 10 AD3d 57 3 (1st Dept 2004).

In so doing, the complaint must be liberally construed in the light most favorable to the plaintiff, and all allegations must be accepted as true. See 511 West 232nd Street Owners Corp. v. Jennifer Realty Co., 10 A.D.3d 573, 782 N.Y.S.2d 423 (1st Dept. 2004); Well v. Rambam, supra; Morad v. Morad, 27 A.D.3d 626, 812 N.Y.S.2d 126 (2d Dept. 2006). If the court determines, from the facts alleged in the complaint and the inferences which can be drawn from the opposition to the motion, that the pleader has a cognizable cause of action, it must deny the motion to dismiss.