In a September 17, 2010, decision by Justice Driscoll in connection with a post-dissolution derivative action on behalf of a microscope-servicing company, and on defendant’s motion for leave to renew his motion to dismiss for lack of standing based on an affidavit from the company’s receiver affirming that plaintiff failed to make a demand on the receiver, the court granted the motion and dismissed the complaint. The court found that health issues experienced by the receiver at the time the underlying motion to dismiss was made “constitute[d] a reasonable justification for the failure to submit his affidavit on the original motion.” Based on the receiver’s affidavit, the court concluded that the plaintiff lacked standing to bring a derivative action because he failed first to make a demand on the receiver and that such a demand would not have been futile because the receiver would have, among other things, provided an analysis of the plaintiff’s claims and attempted to mediate the dispute in order to preserve corporate assets.
Koenig v Koenig, Sup Ct, Nassau County, September 17, 2010, Driscoll, J., Index No. 021401/09
*For a more detailed analysis of this decision and its impact, see our colleague Peter A. Mahler’s post at New York Business Divorce.