Moss v. Kadish

33 A.D.2d 1008, 307 N.Y.S.2d 793, 1970 N.Y. App. Div. LEXIS 5485

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 19, 1970
• Status: Published

Opinion

Order, entered May 23, 1969, unanimously modified, on the law, to dismiss the second and third causes of action, subject, however, to the right of plaintiff to apply to Special Term to replead the second cause of action, the third cause of action is severed, and order otherwise affirmed, without costs and without disbursements. The causes hereby dismissed, alleging wrongs against the corporation of which plaintiff’s testatrix was a stockholder, do not show a basis for an individual recovery by the plaintiff. (See Niles v. New York Cent. & Hudson Riv. R. R. Co., 176 N. Y. 119; Greenfield v. Benner, 6 N Y 2d 867.) In view of statements on the argument and in the circumstances of this particular ease, the plaintiff should be given leave to apply to Special Term for amendment of the second cause of action to plead facts establishing that plaintiff’s testatrix was individually damaged by acts wrongful as to her. In furtherance of the purposes of CPLR 3211 (subd. [e]), and in conformity with the decisions of this court. the plaintiff, as a condition to obtaining leave to amend, must present a factual showing of a right of individual recovery on the basis of the proposed amended cause. “ The privilege of serving an amended pleading must now rest not only upon formal corrections in the deficient pleading, but also upon an evidentiary demonstration to satisfy a court that the party ‘ has good ground to support his cause of action’”. (Cushman & Wakefield v. John David, Inc., 25 A D 2d 133, 135.) If the plaintiff desires to avail himself of the privilege to replead as to the second cause of action, the application shall be made within 20 days from the date of the entry of the order on the determination of this court. Concur — Eager, J. P., Capozzoli, Nunez and Steuer, JJ.