derivative claim in New York

2024AD3d 34, 994 NYS2d 64 [Pt Dept., 2014] the court explained that to distinguish a derivative claim .from an individual claim the court must engage in two inquiries.

2024Accordingly, loss of investment or guarantees do not entitle Elfand to enforce the rights on the LLC ( Serino , 123 AD3d at 41 ["the lost value of an investment in a corporation is quintessentially a derivative claim by a shareholder"]).

2024A derivative claim, and any subsequent recovery, belong to the entity ( Auerbach v Bennett , 47 NY2d 619, 631 [1979] ["Derivative claims against corporate directors belong to the corporation itself "]; Yudell v Gilbert , 99 AD3d 108, 114 [1st Dept 2012]).

2024A derivative claim, and any subsequent recovery, belong to the entity ( Auerbach v Bennett , 47 NY2d 619, 631 [1979] ["Derivative claims against corporate directors belong to the corporation itself "]; Yudell v Gilbert , 99 AD3d 108, 114 [1st Dept 2012]).

2026This is at best a derivative claim, and the Plaintiff lacks standing (see Abrams, 66 NY2d at 953 ).

2024It is well settled that "[a]n individual shareholder has no right to bring an action in his [or her] own name and in his [or her] own behalf for a wrong committed against the corporation." ( General Motors Acceptance Corp. v Kalkstein, 101 AD2d 102, 105-106 [1st Dept 1984] [citation omitted], appeal dismissed 63 NY2d 676 [1984].) An exception to this rule allows a shareholder to recover in its individual capacity "when the wrongdoer had breached a duty owed to the shareholder independent of any duty owing to the corporation wronged." (Abrams v Donati, 66 NY2d 951, 953 [1985] [citations omitted

2017Thus, under the circumstances herein, the plaintiffs are “foreclosed from asserting a derivative claim against the [Village]” (Martin v Village of Freeport, 71 AD3d 745, 746 [2010]; see Adam H. v County of Orange, 66 AD3d 739, 740 [2009]).

2017Thus, under the circumstances herein, the plaintiffs are “foreclosed from asserting a derivative claim against the [Village]” (Martin v Village of Freeport, 71 AD3d 745, 746 [2010]; see Adam H. v County of Orange, 66 AD3d 739, 740 [2009]).

2026Further, plaintiff's first cause of action pertaining to the balcony repair issue is supported by evidence — including photographs, deposition testimony, expert inspections of the relevant balconies, and open violations issued by the DOB and HPD — that raises triable issues of fact concerning whether Sherwood fulfilled its contractual maintenance obligations to the condominium ( see Owens v New Empire Corp ., 244 AD3d 454 , 456 [1st Dept 2025]; see also Caprer v Nussbaum , 36 AD3d 176, 190 [2d Dept 2006]). [FN1] For the same reasons, to the extent plaintiff's third cause of action also alleged

2007The Second Department has recently reiterated this position—but this time only in dicta (see Caprer v Nussbaum, 36 AD3d 176, 189 [2006]). 5 We respectfully decline to follow the Second Department given (1) the historic judicial recognition of the common-law right to bring a derivative action on behalf of a corporation or a limited partnership, both of which share many of a limited liability company’s characteristics; (2) the principles of statutory construction, which provide that only a clear statement of legislative intent may override the common law; (3) the fact that most states provide a

2013Where the derivative claim complains of the board’s nonfeasance, as opposed to a business decision, a court need only “determine whether or not the particularized factual allegations . . . create a reasonable doubt that . . . the board of directors could have properly exercised its independent and disinterested business judgment in responding to a demand” (Rales v Blasband, 634 A2d 927, 934 [Del 1993]; Simon v Becherer, 7 AD3d 66 [1st Dept 2004]).

2005Where, as here, the derivative claim alleges board nonfeasance, as opposed to a business decision, a court need only “determine whether or not the particularized factual allegations . . . create a reasonable doubt that. . . the board of directors could have properly exercised its independent and disinterested business judgment in responding to a demand” (Rales v Blasband, 634 A2d 927, 934 [Del 1993]).

2017Thus, under the circumstances herein, the plaintiffs are “foreclosed from asserting a derivative claim against the [Village]” (Martin v Village of Freeport, 71 AD3d 745, 746 [2010]; see Adam H. v County of Orange, 66 AD3d 739, 740 [2009]).

2017Thus, under the circumstances herein, the plaintiffs are “foreclosed from asserting a derivative claim against the [Village]” (Martin v Village of Freeport, 71 AD3d 745, 746 [2010]; see Adam H. v County of Orange, 66 AD3d 739, 740 [2009]).

2023The covenant of good faith and fair dealing "embraces a pledge that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract" ( 511 W. 232nd Owners Corp. v Jennifer Realty Co. , 98 NY2d 144, 153 [2002] [internal quotation marks omitted]).

2023The covenant of good faith and fair dealing "embraces a pledge that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract" ( 511 W. 232nd Owners Corp. v Jennifer Realty Co. , 98 NY2d 144, 153 [2002] [internal quotation marks omitted]).

2014Notwithstanding that determination, the derivative claim of Saramma Devadas must nevertheless be dismissed. “[T] oiling of the statute of limitations pursuant to the continuous treatment doctrine is personal to the recipient of such treatment and does not extend to a derivative claim for loss of services” (Wojnarowski v Cherry, 184 AD2d 353, 354-355 [1st Dept 1992]).

2014Notwithstanding that determination, the derivative claim of Saramma Devadas must nevertheless be dismissed. "[T]olling of the statute of limitations pursuant to the continuous treatment doctrine is personal to the recipient of such treatment and does not extend to a derivative claim for loss of services" ( Wojnarowski v Cherry , 184 AD2d 353, 354-355 [1st Dept 1992]).

2024A derivative claim, and any subsequent recovery, belong to the entity ( Auerbach v Bennett , 47 NY2d 619, 631 [1979] ["Derivative claims against corporate directors belong to the corporation itself "]; Yudell v Gilbert , 99 AD3d 108, 114 [1st Dept 2012]).

2024A derivative claim, and any subsequent recovery, belong to the entity ( Auerbach v Bennett , 47 NY2d 619, 631 [1979] ["Derivative claims against corporate directors belong to the corporation itself "]; Yudell v Gilbert , 99 AD3d 108, 114 [1st Dept 2012]).

2021By instituting the second action, plaintiff effectively abandoned the instant action, thereby mooting the appeal from the order dismissing, without prejudice, her derivative legal malpractice claim ( see Sherrill v Grayco Bldrs. , 99 AD2d 965 [1st Dept 1984], affd 64 NY2d 261 [1985]; see also CRAFT EM CLO 2006-1, Ltd. v Deutsche Bank AG , 139 AD3d 638, 638-639 [1st Dept 2016]).

2021By instituting the second action, plaintiff effectively abandoned the instant action, thereby mooting the appeal from the order dismissing, without prejudice, her derivative legal malpractice claim ( see Sherrill v Grayco Bldrs. , 99 AD2d 965 [1st Dept 1984], affd 64 NY2d 261 [1985]; see also CRAFT EM CLO 2006-1, Ltd. v Deutsche Bank AG , 139 AD3d 638, 638-639 [1st Dept 2016]).

2014“The doctrine of in pari delicto is an equitable defense based on agency principles which bars a plaintiff from recovering where the plaintiff is itself at fault” (Symbol Tech., Inc. v Deloitte & Touche, LLP, 69 AD3d 191, 196 [2009]).

2014“The doctrine of in pari delicto is an equitable defense based on agency principles which bars a plaintiff from recovering where the plaintiff is itself at fault” (Symbol Tech., Inc. v Deloitte & Touche, LLP, 69 AD3d 191, 196 [2009]).

2014Nor did the proposed claim of lack of informed consent relate back to the original claim for medical malpractice (see Raymond v Ryken, 98 AD3d 1265 [4th Dept 2012]; Pagan v Quinn, 51 AD3d 1299, 1301 [3d Dept 2008]; Jolly v Russell, 203 AD2d 527, 529 [2d Dept 1994]).

2014Nor did the proposed claim of lack of informed consent relate back to the original claim for medical malpractice (see Raymond v Ryken, 98 AD3d 1265 [4th Dept 2012]; Pagan v Quinn, 51 AD3d 1299, 1301 [3d Dept 2008]; Jolly v Russell, 203 AD2d 527, 529 [2d Dept 1994]).

2014Nor did the proposed claim of lack of informed consent relate back to the original claim for medical malpractice (see Raymond v Ryken, 98 AD3d 1265 [4th Dept 2012]; Pagan v Quinn, 51 AD3d 1299, 1301 [3d Dept 2008]; Jolly v Russell, 203 AD2d 527, 529 [2d Dept 1994]).

2014Nor did the proposed claim of lack of informed consent relate back to the original claim for medical malpractice (see Raymond v Ryken, 98 AD3d 1265 [4th Dept 2012]; Pagan v Quinn, 51 AD3d 1299, 1301 [3d Dept 2008]; Jolly v Russell, 203 AD2d 527, 529 [2d Dept 1994]).

2013Dowdall v General Motors Corp., 34 AD3d 1221, 1222 [4th Dept 2006]; Lucido v Vitolo, 251 AD2d 383, 384 [2d Dept 1998]).

2013Dowdall v General Motors Corp., 34 AD3d 1221, 1222 [4th Dept 2006]; Lucido v Vitolo, 251 AD2d 383, 384 [2d Dept 1998]).

2013Therefore, plaintiff should have brought the accounting cause of action as a derivative claim, not an individual one (see Romanoff, 69 AD2d at 856 ; see also Fisher v Big Squeeze [N.Y.], Inc., 349 F Supp 2d 483, 488 [ED NY 2004]).

2013Therefore, plaintiff should have brought the accounting cause of action as a derivative claim, not an individual one (see Romanoff, 69 AD2d at 856 ; see also Fisher v Big Squeeze [N.Y.], Inc., 349 F Supp 2d 483, 488 [ED NY 2004]).

2024In order to distinguish a derivative claim from a direct one, the court considers "(1) who suffered the alleged harm (the corporation or the suing stockholders, individually); and (2) who would receive the benefit of any recovery or other remedy (the corporation or the stockholders individually)" ( Yudell, 99 AD3d at 114 , 949 N.Y.S.2d 380 , quoting Tooley, 845 A.2d at 1033 ).

2023To distinguish a derivative claim from a direct one, the First Department has adopted the Tooley test, under which a court must consider: "(1) who suffered the alleged harm (the corporation or the suing stockholders, individually); and (2) who would receive the benefit of any recovery or other remedy (the corporation or the stockholders individually)" ( H & M Trading Co. LLC v. Jordache Ltd ., 49 Misc 3d 1213(A) [Sup Ct NY County 2015] citing Tooley v. Donaldson, Lufkin & Jenrette, Inc ., 845 A2d 1031, 1039 [Del 2004]).

2012Therefore, the defendant Village of Freeport had been duly and timely notified (see Burgarella v City of New York, 265 AD2d 361 [1999]).

2011Therefore, the NYCTA had been duly and timely notified (see Burgarella v City of New York, 265 AD2d 361 [1999]).

2022Instead, the spouse's request must be analyzed separately ( see Hayden v Incorporated Vil. of Hempstead , 103 AD2d 765, 766 ; Matter of Holland v New York City Health & Hosps.

2017Corp., 84 AD2d 826, 827 [1981]; cf. Hayden v Incorporated Vil. of Hempstead, 103 AD2d 765, 766 [1984]; Matter of Holland v New York City Health & Hosps.

2022Owners v Metzger , 250 AD2d 471, 471 ; see Board of Mgrs. of Amherst Condominium v CC Ming [USA] Ltd.

2004Owners v Metzger, 250 AD2d 471, 471 [1998] [noting that “it is common practice to sever a derivative claim for attorneys’ fees upon granting judgment on the main claim”]).

2017Corp., 84 AD2d 826, 827 [1981]; cf. Hayden v Incorporated Vil. of Hempstead, 103 AD2d 765, 766 [1984]; Matter of Holland v New York City Health & Hosps.

1982Corp., 84 AD2d 826 .) The court relied on the more liberal approach mandated by subdivision 5 of section 50-e. This court does not believe that the 1976 amendment to subdivision 5 of section 50-e of the General Municipal Law was intended to liberalize the statute to the extent that if a claimant is granted an extension of time based upon infancy then the parent has an automatic right to file with respect to the derivative claim.