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The People of the State of New York, Etc., Plaintiff-Respondent v. John C. Moore

New York Supreme and/or Appellate Courts Appellate Division, First Department


February 28, 2013

THE PEOPLE OF THE STATE OF NEW YORK, ETC., PLAINTIFF-RESPONDENT, --
v.
JOHN C. MOORE, ET AL., DEFENDANTS-APPELLANTS.

People v Moore

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 28, 2013 Tom, J.P., Sweeny, Renwick, Manzanet-Daniels, JJ.

Order, Supreme Court, New York County (Anil C. Singh, J.), entered September 17, 2012, which denied defendants' motion to dismiss the complaint, unanimously affirmed, without costs.

The motion to dismiss the complaint against defendants, a not-for-profit corporation and its directors, was properly denied. Defendants are not entitled to pre-discovery dismissal of the complaint based on the business judgment rule where, as here, the complaint is replete with allegations that the directors did not act in good faith (see e.g. Ackerman v 305 E. 40th Owners Corp., 189 AD2d 665, 667 [1st Dept 1993]). Defendants are also not entitled to dismissal based on documentary evidence since they failed to proffer materials that utterly refute the complaint's factual allegations (see Goshen v Mut. Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 28, 2013

CLERK

20130228

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