| Zuckerbrod v 355 Co., LLC |
| 2014 NY Slip Op 00219 [113 AD3d 675] |
| January 15, 2014 |
| Appellate Division, Second Department |
| Elaine Zuckerbrod, Appellant, et al.,Plaintiffs, v 355 Company, LLC, et al.,Respondents. |
—[*1] Newman Ferrara LLP, New York, N.Y. (Jarred I. Kassenoff and Glenn Berezanskiyof counsel), for respondents.
In an action, inter alia, to recover damages for breach of fiduciary duty and fraud, theplaintiff Elaine Zuckerbrod appeals, as limited by her brief, from so much of an order ofthe Supreme Court, Nassau County (Driscoll, J.), entered December 13, 2011, as grantedthat branch of the defendants' motion which was for summary judgment dismissing thecomplaint insofar as asserted by her.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly granted that branch of the defendants' motion whichwas for summary judgment dismissing the complaint insofar as asserted by the plaintiffElaine Zuckerbrod (hereinafter the appellant) based on, among other things, the businessjudgment rule. The business judgment rule "bars 'judicial inquiry into actions ofcorporate directors taken in good faith and in the exercise of honest judgment in thelawful and legitimate furtherance of corporate purposes' " (North Fork Preserve, Inc. vKaplan, 68 AD3d 732, 733 [2009], quoting Auerbach v Bennett, 47NY2d 619, 629 [1979]). The defendants established, prima facie, that the defendantMorton Olshan acted in good faith and in the lawful and legitimate furtherance of thepurposes of the defendants 355 Company, LLC, 60 West 76 Co., LLC, and 68 MontagueCo., LLC (hereinafter collectively the LLCs), when he retained revenue derived from thebuildings owned by the LLCs to pay for repairs and capital improvements to thosebuildings, and when he entered into a management agreement on behalf of the LLCswith the defendant Janoff & Olshan, Inc. (see North Fork Preserve, Inc. vKaplan, 68 AD3d at 733). In opposition to the defendants' prima facie showing inthis regard, the appellant failed to adduce evidence to substantiate her allegations offraud, bad faith, or breach of fiduciary duty and, thus, failed to raise a triable issue of fact(see id.). The appellant's mere hope and speculation that evidence sufficient todefeat the defendants' motion for summary judgment might be uncovered through furtherdiscovery was insufficient to defeat the motion (see Buchinger v Jazz Leasing Corp., 95 AD3d 1053, 1054[2012]; Zarzycki v Lan MetalProds. Corp., 62 AD3d 788, 790 [2009]).
Moreover, insofar as the appellant's causes of action alleged that wrongs werecommitted against the LLCs, she should have asserted causes of action derivatively,rather than in [*2]her individual capacity (see generally Tzolis v Wolff,10 NY3d 100, 109 [2008]; see also Mizrahi v Cohen, 104 AD3d 917, 919 [2013]).
Accordingly, the Supreme Court properly granted the defendants' motion forsummary judgment dismissing the complaint insofar as asserted by the appellant. Skelos,J.P., Dillon, Dickerson and Austin, JJ., concur.