Skolnik v. Rose

Appellate Division of the Supreme Court of New York

Skolnik v. Rose

77 A.D.2d 837, 431 N.Y.S.2d 25, 1980 N.Y. App. Div. LEXIS 12622

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

DecidedAugust 14, 1980

StatusPublished

This text of 77 A.D.2d 837 (Skolnik v. Rose) 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

Skolnik v. Rose, 77 A.D.2d 837, 431 N.Y.S.2d 25, 1980 N.Y. App. Div. LEXIS 12622 (N.Y. Ct. App. 1980).

Pincite

Opinion

Order, Supreme Court, New York County, entered April 27, 1979, reversed, to the extent appealed from, on the law, and the complaint dismissed, and the cross appeal, having been rendered academic, is dismissed, with costs. The declaration of trust, the basic agreement between the parties, was, as recited in the preamble thereto, entered into in Massachusetts; further, it provides that it "is executed by the Trustees and delivered in the Commonwealth of Massachusetts and with reference to the laws of that Commonwealth and the rights of all parties and the construction, validity and effect of the provisions hereof and the administration of the Trust created hereby shall be subject to and construed according to the laws of that Commonwealth.” (Art 7, §2.) Massachusetts law is to the effect that demand upon shareholders of a corporation is prerequisite to commencement of a derivative action. (Pomerantz v Clark, 101 F Supp 341, 343.) Pursuing the same analogy relied on by plaintiff, i.e., to read the Business Corporation Law of this State to apply to the subject business trust, we regard this prerequisite to apply to this derivative action. Concededly, this precondition to suit was never complied with, and the action may not be maintained. Concur—Ross, J. P., Markewich, Silverman, Bloom and Carro, JJ.

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Order, Supreme Court, New York County, entered April 27, 1979, reversed, to the extent appealed from, on the law, and the complaint dismissed, and the cross appeal, having been rendered academic, is dismissed, with costs. The declaration of trust, the basic agreement between the parties, was, as recited in the preamble thereto, entered into in Massachusetts; further, it provides that it "is executed by the Trustees and delivered in the Commonwealth of Massachusetts and with reference to the laws of that Commonwealth and the rights of all parties and the construction, validity and effect of the provisions hereof and the administration of the Trust created hereby shall be subject to and construed according to the laws of that Commonwealth.” (Art 7, §2.) Massachusetts law is to the effect that demand upon shareholders of a corporation is prerequisite to commencement of a derivative action. (Pomerantz v Clark, 101 F Supp 341, 343.) Pursuing the same analogy relied on by plaintiff, i.e., to read the Business Corporation Law of this State to apply to the subject business trust, we regard this prerequisite to apply to this derivative action. Concededly, this precondition to suit was never complied with, and the action may not be maintained. Concur—Ross, J. P., Markewich, Silverman, Bloom and Carro, JJ.

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Bluebook (online)

77 A.D.2d 837, 431 N.Y.S.2d 25, 1980 N.Y. App. Div. LEXIS 12622, Counsel Stack Legal Research, https://law.counselstack.com/opinion/skolnik-v-rose-nyappdiv-1980.

Opinion

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