SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
May 13, 1968
VALMART FOOD BUYING SERVICE, INC., APPELLANT,
ROSE STERNGASS, RESPONDENT, ET AL., DEFENDANTS. ROSE STERNGASS, THIRD-PARTY PLAINTIFF-RESPONDENT, V. VALMART FOOD BUYING SERVICE, INC., ET AL., THIRD-PARTY DEFENDANTS-APPELLANTS
Beldock, P. J., Christ, Benjamin, Munder and Martuscello, JJ., concur.
In our opinion the motions to dismiss the counterclaims and third-party causes should have been entertained as motions brought pursuant to CPLR 3211 (subd. [a], pars. 6, 7) and granted on the grounds that said counterclaims and causes may not properly be interposed in the action and fail to state a cause in favor of respondent. The counterclaims and third-party causes seek recovery by respondent individually for damages sustained by the corporation of which she owns a majority of the capital stock. As pleaded, her rights are merely derivative; and she has no capacity to sue as an individual by way of counterclaims and third-party causes in this action (see All States Warehousing v. Mammoth Storage Warehouses, 7 A.D.2d 714).
As so modified, order affirmed, without costs.
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