Opinion
4031.
Decided June 29, 2004.
Appeal from order, Supreme Court, Bronx County (Alan J. Saks, J.), entered April 2, 2003, which granted defendants' motion pursuant to CPLR 3211(a)(7) to dismiss the first three causes of action in the complaint for failure to state a cause of action and to limit the fourth and fifth causes of action to acts encompassed within the applicable six-year statute of limitations, while granting so much of plaintiff's cross motion for leave to file and serve an amended complaint, unanimously dismissed, without costs.
Hass Gottlieb, Scarsdale (Lawrence M. Gottlieb of counsel), for appellant.
Briccetti, Calhoun Lawrence, LLP, White Plains (Kerry A. Lawrence of counsel), for respondents.
Before: Nardelli, J.P., Mazzarelli, Sullivan, Lerner, Friedman, JJ.
Where, as here, an amended complaint has been filed, issues involving the original complaint are rendered academic, thereby warranting dismissal of the appeal ( cf. Bennett v. City of New York, 65 A.D.2d 731). Were we to consider plaintiff's challenges to the disposition of defendants' motion to dismiss on the merits, we would find his arguments unavailing. Accusations of mismanagement, diversion of assets or fraud on the part of corporate officers or directors constitute wrongs for which a shareholder can sue derivatively, but has no standing to sue in his individual capacity ( Abrams v. Donati, 66 N.Y.2d 951).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.