Opinion
2016–09969 Index No. 702987/15
04-17-2019
Felix GLAUBACH, etc., Respondent, v. David SLIFKIN, et al., Defendants, Personal Touch Holding Corp., et al, Nominal Defendants-Appellants.
Ruskin Moscou Faltischek, P.C., Uniondale, N.Y. (Jonathan C. Sullivan of counsel), for nominal defendants-appellants. The Wilder Law Firm, New York, N.Y. (Nick Wilder of counsel), for respondent.
Ruskin Moscou Faltischek, P.C., Uniondale, N.Y. (Jonathan C. Sullivan of counsel), for nominal defendants-appellants.
The Wilder Law Firm, New York, N.Y. (Nick Wilder of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, ROBERT J. MILLER, JJ.
DECISION & ORDER ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the nominal defendants pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against them is granted.
The background facts as to this action are set forth in this Court's decision and order on a companion appeal (see Glaubach v. Slifkin, ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2019 WL 1646427 [Appellate Division Docket No. 2016–01265 ; decided herewith] ).
The evidence submitted in relation to the nominal defendants' motion pursuant to CPLR 3211(a) to dismiss the amended complaint, like the evidence at issue in the companion appeal, conclusively demonstrated that prior to commencing this shareholders' derivative action, the plaintiff did not demand that the corporation's board of directors take specific action (see Glaubach v. Slifkin, ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2019 WL 1646427 [Appellate Division Docket No. 2016–01265 ; decided herewith] ). Further, the plaintiff failed to adequately plead that such a demand would be futile (see id. ). Accordingly, the Supreme Court should have granted the motion of the nominal defendants pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against them.
In light of our determination, we need not reach the nominal defendants' remaining contentions.
SCHEINKMAN, P.J., CHAMBERS, AUSTIN and MILLER, JJ., concur.