Ciullo v. Orange & Rockland Utilities, Inc.

271 A.D.2d 369, 706 N.Y.S.2d 428, 2000 N.Y. App. Div. LEXIS 4626

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 27, 2000
• Status: Published

Opinion

—Judgment, Supreme Court, New York County (Charles Ramos, J.), entered February 9, 1999, dismissing the complaint and bringing up for review a prior order, entered January 12, 1999, which granted defendants’ motion to dismiss the complaint and denied plaintiffs’ cross motion to supplement the complaint, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered January 12, 1999, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Plaintiffs lack standing to challenge the dismissal of their complaint since they are no longer shareholders in defendant corporation, having tendered their shares for cash in the merger of defendant corporation into another corporation (see, Silverman v Schwartz, 248 AD2d 332, citing Rubinstein v Catacosinos, 91 AD2d 445, 446-447, affd for reasons stated 60 NY2d 890). In any event, all of plaintiffs’ purported individual and class claims are merely disguised derivative claims (see, Abrams v Donati, 66 NY2d 951), as to which plaintiffs fail to plead with particularity the reasons why a demand on defendant’s board would be futile, and therefore may not be maintained (see, Marx v Akers, 88 NY2d 189, 198). Plaintiffs’ proposed new causes of action in their motion to supplement the complaint fail to state a cause of action, since the challenged proxy statement adequately disclosed the existence and nature of this litigation by way of reference to defendant corporation’s Schedule 8-Ks. Concur — Sullivan, P. J., Tom, Wallach and Saxe, JJ.