Kocan v. Ismach

Order, Supreme Court, New York County (Diane Lebedeff, J.), entered March 19, 1993, which denied defendants’ motion for summary judgment dismissing the first, second and sixth causes of action in plaintiffs amended complaint, unanimously affirmed, with costs. Concerning the first cause of action, although plaintiff admittedly was not a director at the time the amended complaint was served, the IAS Court properly allowed the amended complaint to relate back to the original complaint for the purpose of establishing plaintiffs derivative standing as a director, since the amended complaint contains no allegations of wrongful conduct separate and independent from that originally alleged (see, Druckerman v Harbord, 31 NYS2d 867, 871). The second cause of action, containing allegations that the individual defendants concealed financial information from plaintiff and misled him into authorizing an unequal compensation scheme, states a claim as to alleged wrongs against him individually. As to the sixth cause of action, defendants’ liability turns on whether plaintiff’s share of the corporation’s book value was determined according to generally accepted accounting principles, an issue of fact (see, Teich v - Andersen & Co., 24 AD2d 749). Concur—Sullivan, J. P., Carro, Ellerin, Kassal and Nardelli, JJ.