Opinion
2013-02-28
The PEOPLE of the State of New York, etc., Plaintiff–Respondent, v. John C. MOORE, et al., Defendants–Appellants.
Simpson Thacher & Bartlett LLP, New York (Barry R. Ostrager of counsel), for appellants. Eric T. Schneiderman, Attorney General, New York (Scott R. Wilson of counsel), for respondent.
Simpson Thacher & Bartlett LLP, New York (Barry R. Ostrager of counsel), for appellants. Eric T. Schneiderman, Attorney General, New York (Scott R. Wilson of counsel), for respondent.
Order, Supreme Court, New York County (Anil C. Singh, J.), entered September 17, 2012, which denied defendants' motion to dismiss the complaint, unanimously affirmed, without costs.
The motion to dismiss the complaint against defendants, a not-for-profit corporation and its directors, was properly denied. Defendants are not entitled to pre-discovery dismissal of the complaint based on the business judgment rule where, as here, the complaint is replete with allegations that the directors did not act in good faith ( see e.g. Ackerman v. 305 E. 40th Owners Corp., 189 A.D.2d 665, 667, 592 N.Y.S.2d 365 [1st Dept. 1993] ). Defendants are also not entitled to dismissal based on documentary evidence since they failed to proffer materials that utterly refute the complaint's factual allegations ( see Goshen v. Mut. Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 [2002] ).