Glaubach v Slifkin, 2019 NY Slip Op 02855 [171 AD3d 1024]
April 17, 2019
Appellate Division, Second Department
[*1]
Felix Glaubach, Derivatively on Behalf of Personal Touch Holding Corp., Respondent,
v
David Slifkin et al., Defendants, and Personal Touch Holding Corp. et al, Appellants.
Ruskin Moscou Faltischek, P.C., Uniondale, NY (Jonathan C. Sullivan of counsel), for nominal defendants-appellants.
The Wilder Law Firm, New York, NY (Nick Wilder of counsel), for respondent.
In a shareholder’s derivative action, the nominal defendants appeal from an order of the Supreme Court, Queens County (Marguerite A. Grays, J.), dated July 22, 2016. The order, insofar as appealed from, denied the motion of the nominal defendants pursuant to CPLR 3211 (a) to dismiss the amended complaint insofar as asserted against them.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the nominal defendants pursuant to CPLR 3211 (a) to dismiss the amended complaint insofar as asserted against them is granted.
The background facts as to this action are set forth in this Court’s decision and order on a companion appeal ( see Glaubach v Slifkin , 171 AD3d 1019 [2019] [decided herewith]).
The evidence submitted in relation to the nominal defendants’ motion pursuant to CPLR 3211 (a) to dismiss the amended complaint, like the evidence at issue in the companion appeal, conclusively demonstrated that prior to commencing this shareholders’ derivative action, the plaintiff did not demand that the corporation’s board of directors take specific action ( see Glaubach v Slifkin , 171 AD3d 1019 [2019] [decided herewith]). Further, the plaintiff failed to adequately plead that such a demand would be futile ( see id. ). Accordingly, the Supreme Court should have granted the motion of the nominal defendants pursuant to CPLR 3211 (a) to dismiss the amended complaint insofar as asserted against them.
In light of our determination, we need not reach the nominal defendants’ remaining contentions. Scheinkman, P.J., Chambers, Austin and Miller, JJ., concur. [Prior Case History: 2016 NY Slip Op 31380(U).].