Opinion
November 17, 1998
Appeal from the Supreme Court, New York County (Herman Cahn, J.).
Plaintiff's standing to sue is governed by Delaware law, that being the State of the subject corporation's incorporation ( see, Graczykowski v. Ramppen, 101 A.D.2d 978, 979; Crouse-Hinds Co. v. Internorth, Inc., 518 F. Supp. 390, 402, n 15, rev in part on other grounds and dismissed in part 634 F.2d 690). Under Delaware law, a plaintiff in a shareholder derivative action, to have standing, must show both shareholder status at the time of the complained of transaction and qualification to serve in a fiduciary capacity as a representative of the shareholder class ( Youngman v. Tahmoush, 457 A.2d 376, 379 [Del]). Here, the IAS Court, in mistakenly applying Business Corporation Law § 626 Bus. Corp., found that plaintiff satisfied the first requirement for standing under Delaware law, but failed to consider the second requirement and the various factors that delineated it ( see, supra, at 379-380), some of which were the subject of conflicting evidence in the parties' motion papers. Accordingly, we remand for further consideration of the matter. The foregoing is not to be understood as foreclosing further submissions by the parties at the invitation of the IAS Court.
Concur — Nardelli, J.P., Rubin, Tom and Andrias, JJ.