Leibert v. Clapp

— In an action by a minority stockholder of a corporation to compel the directors to take proceeding’s to dissolve the corporation, and for incidental relief, defendants appeal from an order of the Supreme Court, Queens County, dated March 28, 1963, which denied their motion, pursuant to rule 106 of the Rules of Civil Practice, to dismiss the amended complaint on the ground that it fails to state facts sufficient to constitute a cause of action. Order reversed, with $10 costs and disbursements, motion granted and amended complaint dismissed. In our opinion, the factual allegations of the amended complaint are insufficient to establish a cause of action. They fail to show that the capital of the corporation was impaired by the majority of the corporation looting the assets and thereby enriching themselves at the expense of the minority, or that the existence 630 of the corporation is being continued for the sole purpose of benefiting those in control, at the expense of the other stockholders (Gross v. Price, 284 App. Div. 964; Aliotta v. Samperisi, 2 A D 2d 901). Beldoek, P. J., Ughetta, Brennan, Hill and Hopkins, JJ., concur.