Berzin v. Litton Industries, Inc.

Order, entered April 23, 1965, unanimously reversed, on the law, with $30 costs and disbursements to defendants-appellants and motion to dismiss complaint granted, with $10 costs, with leave to plaintiff to replead within 20 days after service of order entered hereon, with notice of entry which relief was requested below in the alternative. The transactions and occurrences set forth in the complaint comprise wrongful acts affecting the assets of the corporation of which plaintiff is a stockholder. Even though it appears that such alleged wrongs have resulted in the waste and depreciation of the assets of the corporation with a consequent loss and damage to plaintiff as a stockholder, his remedy therefor is limited to a derivative suit. (See Greenfield v. Denner, 6 N Y 2d 867, revg. 6 A D 2d 263; Niles v. New York Cent. & Hudson Riv. R. R. Co., 176 N. Y. 119.) The plaintiff has failed to set forth essential facts showing the material elements of any individual cause of action and, therefore, the complaint should be dismissed. (See Foley v. D’Agostino, 21 A D 2d 60; Duross Co. v. Evans, 22 A D 2d 573.) Concur — Breitel, J. P., McNally, Eager and Witmer, JJ.