Garcia v. Tamir

—In an action to recover damages for unpaid wages, the plaintiffs appeal from an order of the Supreme Court, Kings County (Shaw, J.), dated November 10, 1998, which granted the motion of the defendants Elliot Tamir and Hazim Abrahim pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against them for failure to state a cause of action. Ordered that the order is affirmed, with costs. Contrary to the plaintiffs’ contention, the complaint was properly dismissed insofar as asserted against the respondents. It is clear that this action was brought against the respondents in their alleged capacity as two of the 10 largest shareholders of the corporate defendants, pursuant to Business Corporation Law § 630. The plaintiffs failed to comply with a condition precedent to such an action, in that they did not allege that judgment had been entered against any of the defendant corporations and returned unsatisfied. Therefore the complaint must be dismissed insofar as asserted against the respondents (see, Powers v Adcraft Typographers, 86 AD2d 566; Grossman v Sendor, 64 AD 2d 561). In any event, the. action must be dismissed insofar as asserted against the defendant Hazim Abrahim, since the complaint fails to allege that he is one of the 10 largest shareholders of any of the defendant corporations (see, Business Corporation Law § 630 [a]). The plaintiffs’ remaining contentions are without merit. O’Brien, J. P., Krausman, Florio and McGinity, JJ., concur.