2018 NY Slip Op 51958

Citation: 2018 NY Slip Op 51958
Jurisdiction: New York (state)
Source verification: cross_accepted_sealed
Original Source: https://www.nycourts.gov/reporter/3dseries/2018/2018_51958.htm ↗

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Defendants correctly urge that Blumenfeld is not, and has never been, a shareholder, and,
therefore, lacks standing to assert any of the derivative causes of action. See generally Tenney
v Rosenthal, 6 NY2d 204, 211-213 (1959). Accordingly, all of the derivative causes of action
are dismissed as to him. As for the remaining plaintiff, Dogwood LLC, each of the derivative
causes of action includes all of the allegations that precede that cause of action, including those
that are relevant solely to the individual causes of action. The mixing of such claims under a
cause of action requires the dismissal of all of the derivative causes of action on that ground
alone. Barbour v Knecht, 296 AD2d at 227-228. Thus, all of the derivative causes of
action are dismissed as to plaintiff Dogwood LLC. In addition, as to Cavaleri, in his capacity as a
Stable officer, the amended 2017 complaint does not allege any proper claim as to him, because
he was not a Board member when that pleading was filed, and there are no allegations that, as an
officer, he had any power over the Board's actions or inactions, including over whether the Board
should have taken measures to legalize the cellar's occupancy. Further, there is no evidence that
he neglected his obligations as a Board member.

Because leave to replead may be appropriate with respect to one or more of the derivative
causes of action, whether in this action, or in the largely identical proposed amended complaint
in the 2015 action, the merits of the balance of the derivative causes of action will be addressed.
The amended 2017 complaint's derivative ninth cause of action, which seeks a mandatory
injunction compelling Youngberg, Cavaleri, and El-Sawy to grant access to each of their units to