Zissimatos v. United States Trust Co.

Appellate Division of the Supreme Court of New York

Zissimatos v. United States Trust Co.

10 A.D.3d 587, 781 N.Y.S.2d 897, 2004 N.Y. App. Div. LEXIS 11194

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

DecidedSeptember 30, 2004

StatusPublished

This text of 10 A.D.3d 587 (Zissimatos v. United States Trust Co.) 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

Zissimatos v. United States Trust Co., 10 A.D.3d 587, 781 N.Y.S.2d 897, 2004 N.Y. App. Div. LEXIS 11194 (N.Y. Ct. App. 2004).

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Opinion

Judgment, Supreme Court, New York County (Karla Moskowitz, J.), entered March 20, 2003, dismissing the amended complaint, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered March 3, 2003, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Plaintiff alleges the wrongful seizure of collateral, asserting, inter alia, claims of fraud and fiduciary breach against the lenders and the collateral trustee. The complaint was dismissed for lack of standing. The seizure of the corporate borrower’s ves[588]*588seis, and the resulting loss of its main assets and diminution in value of plaintiffs shares, could only be redressed by a derivative action (see Abrams v Donati, 66 NY2d 951 [1985]). Even if we assume an exception to the foregoing rule where the alleged wrongdoer has induced the shareholder to form the corporation, there is no allegation here that the corporation was formed as an instrument of any of the alleged wrongdoing (see TNS Holdings v MKI Sec. Corp., 92 NY2d 335 [1998]).

In view of the foregoing, it is unnecessary to address the other grounds urged for dismissal of the action. Concur—Nardelli, J.P., Andrias, Ellerin, Gonzalez and Catterson, JJ.

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Judgment, Supreme Court, New York County (Karla Moskowitz, J.), entered March 20, 2003, dismissing the amended complaint, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered March 3, 2003, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Plaintiff alleges the wrongful seizure of collateral, asserting, inter alia, claims of fraud and fiduciary breach against the lenders and the collateral trustee. The complaint was dismissed for lack of standing. The seizure of the corporate borrower’s ves[588]*588seis, and the resulting loss of its main assets and diminution in value of plaintiffs shares, could only be redressed by a derivative action (see Abrams v Donati, 66 NY2d 951 [1985]). Even if we assume an exception to the foregoing rule where the alleged wrongdoer has induced the shareholder to form the corporation, there is no allegation here that the corporation was formed as an instrument of any of the alleged wrongdoing (see TNS Holdings v MKI Sec. Corp., 92 NY2d 335 [1998]).

In view of the foregoing, it is unnecessary to address the other grounds urged for dismissal of the action. Concur—Nardelli, J.P., Andrias, Ellerin, Gonzalez and Catterson, JJ.

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Bluebook (online)

10 A.D.3d 587, 781 N.Y.S.2d 897, 2004 N.Y. App. Div. LEXIS 11194, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zissimatos-v-united-states-trust-co-nyappdiv-2004.

Opinion

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