Herzog, Heine, Geduld, Inc. v. NCC Industries, Inc.

251 A.D.2d 173, 673 N.Y.S.2d 910, 1998 N.Y. App. Div. LEXIS 7294

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 18, 1998
• Status: Published

Opinion

—Order, Supreme Court, New York County (Herman Cahn, J.), entered April 22, 1997, which, in an action for breach of fiduciary duty by plaintiffs minority shareholders against, among others, defendants-respondents majority shareholders, director and officer of the subject corporation, insofar as appealed from, granted defendants-respondents’ motion to dismiss the complaint for failure to state a cause of action, unanimously affirmed, with costs.

The action was properly dismissed on the ground that under Delaware law, majority shareholders have no nonderivative fiduciary duty to share proportionately with minority shareholders the “control premium” received from the sale of a majority share in the corporation (see, Thorpe v CERBCO, Inc., 676 A2d 436, 441). Nothing in the complaint can be fairly construed as alleging that the corporation was harmed by the sale, only that plaintiffs were harmed in being deprived of a proportionate share of the price premium defendants received for control of the corporation (compare, supra). Concur — Milonas, J. P., Nardelli, Wallach and Saxe, JJ.