Opinion
Argued December 17, 1999
February 17, 2000
In an action to recover damages for unpaid wages, the plaintiffs appeal from an order of the Supreme Court, Kings County (Shaw, J.), dated November 10, 1998, which granted the motion of the defendants Elliot Tamir and Hazim Abrahim pursuant to CPLR 3211 N.Y.CPLR(a)(7) to dismiss the complaint insofar as asserted against them for failure to state a cause of action.
Leon Greenberg, New York, N.Y., for appellants.
Franklin, Gringer Lipp, P.C., Garden City, N.Y. (Robert G. Lipp of counsel), for respondents.
CORNELIUS J. O'BRIEN, J.P., GABRIEL M. KRAUSMAN, ANITA R. FLORIO, LEO F. McGINITY, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
Contrary to the plaintiffs' contention, the complaint was properly dismissed insofar as asserted against the respondents. It is clear that this action was brought against the respondents in their alleged capacity as two of the 10 largest shareholders of the corporate defendants, pursuant to Business Corporation Law § 630 Bus. Corp.. The plaintiffs failed to comply with a condition precedent to such an action, in that they did not allege that judgment had been entered against any of the defendant corporations and returned unsatisfied. Therefore the complaint must be dismissed insofar as asserted against the respondents (see, Powers v. Adcraft Typographers, 86 A.D.2d 566; Grossman v. Sendor, 64 A.D.2d 561). In any event, the action must be dismissed insofar as asserted against the defendant Hazim Abrahim, since the complaint fails to allege that he is one of the 10 largest shareholders of any of the defendant corporations (see, Business Corporation Law § 630 Bus. Corp.[a]).
The plaintiffs' remaining contentions are without merit.