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Diana v. Lynch

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT


May 17, 1979

JAMES DIANA, PLAINTIFF-APPELLANT,
v.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED; MERRILL LYNCH & CO., INC.; AND DONALD T. REGAN, DEFENDANTS-APPELLEES.

Appeal from the United States District Court for the Southern District of New York.

Present: HONORABLE IRVING R. KAUFMAN, Chief Judge. HONORABLE WILLIAM H. TIMBERS, Circuit Judge. HONORABLE HOWARD T. MARKEY, U.S. Court of Customs and Patent Appeals, sitting by designation.

This cause came on to be heard on the transcript of record from the United States District Court for the Southern District of New York, and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged, and decreed that the order of said District Court be and it hereby is affirmed.

1. Judge Bonsal did not abuse his discretion in denying the plaintiff access to the corporation's shareholder's list, inasmuch as Diana had been on notice for a substantial period of time that Merrill Lynch would demand security for costs. See Bader & Bader v. Ford, N.Y.L.J., August 7, 1978, at 13-14, (Sup. Ct., New York County), rev'd on other grounds, N.Y.L.J., Mar. 12, 1979, at 1 (App. Div., 1st Dept., March 8, 1979). See generally Baker v. McFadden Publications, 300 N.Y. 325, 90 N.E. 2d 876 (1950); I. Kantrowitz & S. Slutsky 3 White on New York Corporations § 624.03, at 6-621 (1978).

2. Appellant's argument that § 627 of the New York Business Corporation Law is unconstitutional is insubstantial and has been squarely rejected on numerous occasions. See, e.g., Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 548 (1949); Kamerman v. Pakco Companies, Inc., [1978 Decisions] Fed. Sec. L. Rep. (CCH) P96,318 (S.D.N.Y. Feb. 6, 1978), aff'd without opinion, No. 78-7566 (2d Cir. Mar. 2, 1979).

19790517

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