Opinion
November 1, 1977
Order Supreme Court, New York County, entered August 16, 1977, denying defendant's motion to dismiss the complaint, unanimously affirmed, without costs or disbursements. Plaintiff instituted this shareholders derivative action alleging, inter alia, that to demand that the board of directors bring this action would be futile since the individual defendants, by virtue of their substantial holdings, control the corporation and its board of directors. It is urged by defendants in support of the motion to dismiss that they (except for Irving W. Blum) are no longer members of the board of directors, and therefore a demand should have been made of the new directors. However, there is no refutation in the moving papers of the fact that defendants still control the corporation and its board would be hostile to any request to bring suit. The allegation of control of the board of directors, unrefuted, constitutes sufficient compliance with subdivision (c) of section 626 Bus. Corp. of the Business Corporation Law to withstand a motion to dismiss the complaint (Barr v Wackman, 36 N.Y.2d 371, 379).
Concur — Lupiano, J.P., Birns, Evans and Lane, JJ.