Opinion
October 20, 1986
Appeal from the Supreme Court, Queens County (Durante, J.).
Ordered that the appeals from the order are dismissed (see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on the appeals from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a] [1]), and it is further,
Ordered that the judgment is affirmed, and it is further,
Ordered that the plaintiff is awarded one bill of costs.
Special Term properly granted the plaintiff's motion for summary judgment as the defendant has not raised any triable issue of fact as to the validity of the loans made by the plaintiff and the plaintiff's assignor to the subject corporations (see, Capelin Assoc. v Globe Mfg. Corp., 34 N.Y.2d 338). The plaintiff submitted loan agreements signed by both the individuals and the corporations and canceled checks evidencing that those loans were made. In light of this evidence, the proposed intervenor's speculation, in an affidavit on behalf of the defendant, that he believed that these loans may have never been made is not sufficient to defeat the motion for summary judgment (see, Auerbach v Bennett, 47 N.Y.2d 619; Citibank, N.A. v Furlong, 81 A.D.2d 803).
Additionally, the court properly denied De Palma's application for leave to intervene as he has not demonstrated that his interests are not being adequately represented by the corporation (see, CPLR 1012). Moreover, a shareholder, even a principal shareholder, who is incidentally injured by an injury to the corporation does not have standing to sue on the basis of either that direct or indirect injury (see, New Castle Siding Co. v Wolfson, 97 A.D.2d 501, affd 63 N.Y.2d 782). De Palma has not shown that any individual duty existed between himself and the plaintiff's assignor as to the loan transaction.
Lastly, the court did not abuse its discretion in refusing to dismiss the action pursuant to CPLR 3211 (a) (4) on the ground that an action between the same parties was pending in Federal court. That Federal action included many additional parties, involved the alleged breach of a settlement agreement and did not relate to the issue of the validity of the loan agreements. Thus, the causes of action did not arise out of the same actionable wrong (see, Hinman, Straub, Pigors Manning v Broder, 89 A.D.2d 278). Lazer, J.P., Mangano, Bracken and Niehoff, JJ., concur.