Allison Publications, Inc. v. Mutual Benefit Life Insurance

197 A.D.2d 463, 602 N.Y.S.2d 858, 1993 N.Y. App. Div. LEXIS 9993

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 26, 1993
• Status: Published

Opinion

—Order, Supreme Court, New York County (Carmen Beauchamp Ciparick, J.), entered May 21, 1992, which, inter alia, denied that portion of the individual defendants’ motion to dismiss that portion of plaintiffs first claim for relief brought individually by plaintiff Allison Publications, Inc. and brought derivatively by plaintiffs Bartlett, Fox and Waugh, unanimously affirmed, with costs.

There was no need for plaintiffs to bring their derivative claims by "securing] the initiation of such action” through demand upon the Rehabilitator of Mutual Benefit Life Insuranee Co. ("MBL”), since MBL was not the general partner of the magazine partnership at issue (Partnership Law § 115-a [3]). Moreover, plaintiffs sufficiently demonstrated that any such demand upon the general partner, Mutual Benefit Financial Service Management Co. ("FIMSCO”), would have been futile since, based on the allegations against FIMSCO, FIM-SCO would have had to bring suit against itself (see, Barr v Wackman, 36 NY2d 371, 381; Curreri v Verni, 156 AD2d 420).

We have considered all other claims and find them to be without merit. Concur—Rosenberger, J. P., Wallach, Kupferman and Nardelli, JJ.