Opinion
July 6, 1976
Order, Supreme Court, New York County, entered April 15, 1975, granting the motion of the defendants for a protective order pursuant to CPLR 3103(a) with respect to the plaintiffs' notices to examine the defendants before trial, unanimously reversed, on the law and the facts, and the protective order denied. Appellants shall recover of respondents $40 costs and disbursements of this appeal. The plaintiffs were directors of the defendant corporation at the time they commenced this derivative action. They are no longer directors. However, the action having been properly initiated, they cannot thereafter "be defeated by the circumstance that the plaintiff loses, or is ousted from, his directorship." (Tenney v Rosenthal, 6 N.Y.2d 204, 208.) The examination shall proceed at a time and place to be fixed in a written notice of not less than 10 days to be given by plaintiffs, or at such time and place as the parties may agree.
Concur — Stevens, P.J., Markewich, Kupferman, Capozzoli and Nunez, JJ.