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LILLIAN STULL v. STUDEBAKER CORPORATION ET AL. (05/23/68)

May 23, 1968

LILLIAN STULL, ON BEHALF OF HERSELF AS A STOCKHOLDER OF STUDEBAKER CORPORATION AND IN THE RIGHT OF STUDEBAKER CORPORATION, AND ON BEHALF OF ALL OTHER STOCKHOLDERS SIMILARLY SITUATED, RESPONDENT,
v.
STUDEBAKER CORPORATION ET AL., APPELLANTS



Concur -- Stevens, J. P., Eager, Steuer, Capozzoli and McNally, JJ.

Plaintiff failed to establish the requisite special circumstances to warrant the pretrial examination sought. She did not present "factual allegations of evidentiary value to establish the charges of improper conduct". (Mann v. Luke, 272 App. Div. 19, 23; Nomako v. Ashton, 20 A.D.2d 331, 333-334.) The conflict of interest sought to be established by plaintiff is based upon conclusory allegations and information contained in proxy statements. This is insufficient. (Van Aalten v. Mack, 7 A.D.2d 289.)

Disposition

Order, entered on November 17, 1967, granting plaintiff's renewed motion to examine defendants before trial in this stockholders' derivative action, unanimously reversed on the law, on the facts and in the exercise of discretion, with $30 costs and disbursements to defendants-appellants, and motion denied.

19680523

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