Galasso v. Pioneer Home Improvement Corp.

In an action against a director and officer of the defendant corporation inter alia for an accounting, based upon allegations of misconduct, defendants appeal, as limited by their notice of appeal and brief, from so much of an order of the Supreme Court, Westchester County, dated June 16, 1975, as denied the branches of their motion which sought to (1) dismiss the complaint or (2) strike certain paragraphs of the complaint as being scandalous and prejudicial. Order modified, on the law, by deleting therefrom the provision which denied the branch of the motion which sought to dismiss the complaint, and by substituting therefor a provision granting the said branch of the motion, with leave to the plaintiff to serve an amended complaint, if he be so advised, within 20 days after service upon his attorney of a copy of the order to be entered hereon, together with notice of entry thereof. As so modified, order affirmed insofar as appealed from, without costs or disbursements. No fact findings were *902presented for review. Plaintiff concededly brings this action as a shareholder and former director and officer of the defendant corporation on behalf of himself "and all other shareholders of the said corporation similarly situated, and in the right of said corporation”, for various equitable remedies pursuant to section 720 of the Business Corporation Law. Because of the derivative nature of his suit, he must comply with subdivision (c) of section 626 of the Business Corporation Law, which he has failed to do. We have examined the defendants’ other contention and find it to be without merit. Hopkins, Acting P. J., Martuscello, Latham, Titone and Hawkins, JJ., concur.