Opinion
March 6, 1984
Appeal from the Supreme Court, Monroe County, Finnerty, J.
Present — Hancock, Jr., J.P., Denman, Boomer, Green and Moule, JJ.
Order unanimously affirmed, with costs. Memorandum: Special Term correctly denied defendants' motion to dismiss plaintiff's complaint in this shareholder's derivative action. The allegations in the complaint must be liberally construed ( MacKay v Pierce, 86 A.D.2d 655). We conclude that plaintiff complied with subdivision (c) of section 626 Bus. Corp. of the Business Corporation Law by alleging with sufficient particularity that it would have been futile to attempt to secure the initiation of this action by the board of directors. The complaint shows that defendant, as majority stockholder, had power under the by-laws to remove plaintiff and his wife, the other directors, without cause. Moreover, defendant was managing director and facts are pleaded warranting the conclusion "that the directors are such only in form, and that the wrongdoer * * * against whom relief is sought actually perform[s] such directorate duties" ( Marco v Sachs, 269 App. Div. 845, aff'd. 295 N.Y. 642; see Barr v Wackman, 36 N.Y.2d 371, 379; Joseph v Amrep Corp., 59 A.D.2d 841).