Zentz v. International Foreign Exchange Concepts, L.P.

In an action, inter alia, to recover damages for breach of fiduciary duty, the plaintiff appeals from so much of an order of the Supreme Court, Kings County (Demarest, J.), dated October 20, 2011, as, in effect, granted that branch of the defendants’ motion which was pursuant to CFLR 3211 (a) (1) to dismiss the seventh cause of action of the amended complaint. Ordered that the order is affirmed insofar as appealed from, with costs. The Supreme Court properly, in effect, granted that branch of the defendants’ motion which was pursuant to CFLR 3211 (a) (1) to dismiss the seventh cause of action of the amended complaint, wherein the plaintiff asserted claims in a shareholder’s derivative capacity. The defendants produced uncontroverted documentary evidence conclusively establishing that the plaintiff was not a shareholder at the time the action was commenced. Accordingly, the plaintiff cannot maintain any claims in a shareholder’s derivative capacity (see Business Corporation Law § 626 [b]; see generally Independent Inv. Protective League v Time, Inc., 50 NY2d 259, 263 [1980]; Kaplan v Queens Optometric Assoc., 293 AD2d 449, 450 [2002]). Rivera, J.E, Balkin, Dickerson and Cohen, JJ., concur. [Prior Case History: 33 Mise 3d 1212(A), 2011 NY Slip Op 51908(U).]