Leopold v United Capital Corp.
2014 NY Slip Op 01243 [114 AD3d 553]
February 20, 2014
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, March 26, 2014


Michael Leopold, Individually and on Behalf of All Others Similarly Situated, Appellant,
v
United Capital Corp. et al., Respondents.

—[*1] Kaplan Fox & Kilsheimer LLP, New York (Jeffrey P. Campisi of counsel), for appellant.

Olshan Frome Wolosky LLP, New York (Jeffrey A. Udell of counsel), for respondents.

Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered November 8, 2012, which granted defendants' motion to dismiss the complaint, unanimously affirmed, without costs.

In this action governed by Delaware law, plaintiff alleges that the individual defendants who are owners and/or directors of the corporate defendant breached their fiduciary duties by delisting and deregistering the corporation's common stock and by structuring a tender offer through an unfair process for inadequate consideration. The motion court properly dismissed plaintiff's claims as derivative, since they allege wrongs affecting both him and the corporation rather than "direct injury . . . independent of any alleged injury to the corporation" (Tooley v Donaldson, Lufkin & Jenrette, Inc., 845 A2d 1031, 1039 [Del 2004]). Concur—Gonzalez, P.J., Tom, Saxe, Freedman and Manzanet-Daniels, JJ.