Verdone v. Suffolk Anesthesiology Associates, P.C.

85 A.D.3d 1152, 925 N.Y.S.2d 898

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 28, 2011
• Status: Published

Opinion

In a shareholder’s derivative action, inter alia, to recover damages for breach of fiduciary duty, Suffolk Anesthesiology Associates EC., Office-Based Anesthesia, LLC, and United Anesthesia, EC., appeal, and the defendants Board of Directors of Suffolk Anesthesiology Associates, EC., Elliot Rossein, Anthony Bonanno, Benjamin Kirschenbaum, James Suazo, Salvatore Buffa, Steven Cohen, Robert Fondacaro, Vineet Gambhir, Philip Kurlander, Andrew Makrides, and Lance Turner also appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Gazzillo, J.), dated April 8, 2010, as denied their motion pursuant to CPLR 3211 (a) (1) and (3) to dismiss the complaint, and the plaintiff cross-appeals, as limited by his brief, from stated portions of the same order which, among other things, denied that branch of his motion which was to disqualify Rosenberg Calica & Birney LLR from the continued representation of the defendants.

Ordered that the appeal by the defendant Philip Kurlander is dismissed as abandoned (see 22 NYCRR 670.8 [e]), without costs or disbursements; and it is further,

Ordered that the order is affirmed insofar as appealed from by the remaining defendants, without costs or disbursements; and it is further,

Ordered that the order is affirmed insofar as cross-appealed from, without costs or disbursements.

The Supreme Court properly denied the defendants’ motion pursuant to CPLR 3211 (a) (1) and (3) to dismiss the action based upon documentary evidence and lack of standing, as the documentary evidence submitted by the defendants did not conclusively establish that the plaintiff was not a shareholder of the subject corporations and, therefore, lacked standing to commence this action (see Levin v Kitsis, 82 AD3d 1051, 1051-1052 [2011]; Dean v Harvestime Tabernacle United Pentecostal Church Intl., 79 AD3d 793, 795 [2010]; Out of Box Promotions, LLC v Koschitzki, 55 AD3d 575, 576-577 [2008]).

The Supreme Court providently exercised its discretion in denying that branch of the plaintiffs motion which was to disqualify the firm of Rosenberg Calica & Birney LLf from the continued representation of the defendants (see Maceno v Dutrevil, 77 AD3d 888, 888-889 [2010]; Scafuri v DeMaso, 71 AD3d 755, 756 [2010]).

We decline the parties’ requests for the imposition of sanctions (see 22 NYCRR 130-1.1 [c]).

The parties’ remaining contentions are without merit. Prudenti, P.J., Eng, Hall and Lott, JJ., concur.