Opinion
14769 Index No. 652584/20 Case No. 2021-02038
12-07-2021
FENWAY POLAR REPRESENTATIVE, LLC, Plaintiff–Appellant, v. AMERICOLD REALTY TRUST, Defendant–Respondent.
Ropes & Gray LLP, New York (Gregg L. Weiner of counsel), for appellant. Quinn Emanuel Urquhart & Sullivan LLP, New York (Jonathan E. Pickhardt of counsel), for respondent.
Ropes & Gray LLP, New York (Gregg L. Weiner of counsel), for appellant.
Quinn Emanuel Urquhart & Sullivan LLP, New York (Jonathan E. Pickhardt of counsel), for respondent.
Renwick, J.P., Mazzarelli, Singh, Mendez, Higgitt, JJ.
Order, Supreme Court, New York County (Jennifer G. Schecter, J.), entered on or about May 10, 2021, which granted defendant's motion to dismiss the complaint pursuant to CPLR 3211(a)(7), unanimously affirmed, without costs.
This action arises from the alleged interference with the sale of a privately held company. Plaintiff sues solely as an attorney-in-fact for the former shareholders of the company. Plaintiff has no standing to sue because it suffered no separate injury. The injury was derivative as it was based solely on the diminution of the value of the company, which was shared equally by all shareholders (see Tooley v. Donaldson, Lufkin & Jenrette, Inc., 845 A.2d 1031, 1038 [Del. 2004] ).
Moreover, because the alleged interference was with the landlords of the company, and not with the auction bidders for the company or anyone else with whom the stockholders had a potential relationship, the claim for interference with potential economic relations was properly dismissed (see Carvel Corp. v. Noonan, 3 N.Y.3d 182, 192, 785 N.Y.S.2d 359, 818 N.E.2d 1100 [2004] ).
While plaintiff's claim that it sold the stock for a fraudulently depressed price does satisfy the out-of-pocket loss rule (see Bernstein v. Kelso & Co., 231 A.D.2d 314, 322, 659 N.Y.S.2d 276 [1st Dept. 1997] ), the fraud claim was properly dismissed for lack of standing.