Silver v. Chase Manhattan Bank

Appellate Division of the Supreme Court of New York

Silver v. Chase Manhattan Bank

49 A.D.2d 851, 374 N.Y.S.2d 8, 1975 N.Y. App. Div. LEXIS 11014

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 21, 1975

StatusPublished

This text of 49 A.D.2d 851 (Silver v. Chase Manhattan Bank) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Silver v. Chase Manhattan Bank, 49 A.D.2d 851, 374 N.Y.S.2d 8, 1975 N.Y. App. Div. LEXIS 11014 (N.Y. Ct. App. 1975).

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Opinion

Order, Supreme Court, New York County, entered April 24, 1975, denying defendant’s motion to dismiss the complaint, unanimously modified, on the law, to the extent of dismissing the first cause of action and otherwise affirmed, without costs and without disbursements. In purported compliance with the permission previously granted by us (Silver v Chase Manhattan Bank, 44 AD2d 797), and after one unsuccessful attempt, plaintiff served a second amended complaint pleading, in the alternative, a double derivative cause of action in behalf of the corporate plaintiff and a direct action by such company. The difficulty with such position is that a derivative action does not lie where, as here, the corporation elects to sue in its own right. However, dismissal of the derivative cause does not preclude the continuation of the action by the corporation. (Cf. Albert v Salzman, 41 AD2d 501, mot for lv to app den 33 NY2d 520.) Concur—Markewich, J. P., Kupferman, Murphy, Tilzer and Nunez, JJ.

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Order, Supreme Court, New York County, entered April 24, 1975, denying defendant’s motion to dismiss the complaint, unanimously modified, on the law, to the extent of dismissing the first cause of action and otherwise affirmed, without costs and without disbursements. In purported compliance with the permission previously granted by us (Silver v Chase Manhattan Bank, 44 AD2d 797), and after one unsuccessful attempt, plaintiff served a second amended complaint pleading, in the alternative, a double derivative cause of action in behalf of the corporate plaintiff and a direct action by such company. The difficulty with such position is that a derivative action does not lie where, as here, the corporation elects to sue in its own right. However, dismissal of the derivative cause does not preclude the continuation of the action by the corporation. (Cf. Albert v Salzman, 41 AD2d 501, mot for lv to app den 33 NY2d 520.) Concur—Markewich, J. P., Kupferman, Murphy, Tilzer and Nunez, JJ.

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Bluebook (online)

49 A.D.2d 851, 374 N.Y.S.2d 8, 1975 N.Y. App. Div. LEXIS 11014, Counsel Stack Legal Research, https://law.counselstack.com/opinion/silver-v-chase-manhattan-bank-nyappdiv-1975.

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