Opinion
October 12, 1978
Order, Supreme Court, New York County, entered December 8, 1977, which, inter alia, denied plaintiff's motion for leave to serve an amended complaint, unanimously modified, on the law, to the extent of granting leave to serve the amended complaint which is to be deemed to be served as of the date of the service of the order entered herein, without costs or disbursements. Plaintiff brought this derivative action alleging, inter alia, that she was a shareholder in JBH Properties, Inc. At issue is whether the plaintiff has made it appear that she was a holder of shares or of a beneficial interest in the corporation at the time the action was brought (Business Corporation Law, § 626, subd [b]). Plaintiff has made such a showing since she alleges that she is in possession of key corporate books and records indicating her interest in the corporation (cf. Bernstein v Polo Fashions, 55 A.D.2d 530). It is to be noted that we have granted plaintiff's motion for leave to replead since we recognize that the evidentiary requirements on such a motion "should not be as stringent as those demanded in seeking or opposing summary judgment" (Cushman Wakefield v David, Inc., 25 A.D.2d 133, 135). We have therefore rendered this determination without prejudice to counsel moving for summary judgment at Special Term if so advised.
Concur — Silverman, J.P., Evans, Lane and Yesawich, JJ.