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Leopold v. United Capital Corp.

Supreme Court of New York, First Department

February 20, 2014

Michael Leopold, etc., Plaintiff-Appellant,
v.
United Capital Corp., et al., Defendants-Respondents.

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.

Gonzalez, P.J., Tom, Saxe, Freedman, Manzanet-Daniels, JJ.

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 A.2d 1031, 1039 [Del 2004]).


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