WILSON v. TULLY


243 A.D.2d 229 (1998)

676 N.Y.S.2d 531

Charles Wilson et al., Appellants, v. Daniel P. Tully et al., Respondents

Appellate Division of the Supreme Court of the State of New York, First Department.

June 18, 1998


Attorney(s) appearing for the Case

Abraham Rappaport of counsel (Jill S. Abrams, Robin F. Zwerling, Nancy Kaboolian, Dan Drachler and Joseph S. Tusa on the brief; Abbey, Gardy & Squitieri, L. L. P., Morris & Morris, and Zwerling, Schachter & Zwerling, L. L. P., attorneys), for appellants.

Dennis J. Block of counsel (Stephen A. Radin, Jason M. Halper, John F.X. Peloso and Kevin T. Rover on the brief; Weil, Gotshal & Manges, L. L. P., and Morgan, Lewis & Bockius, L. L. P., attorneys), for respondents and nominal defendant-respondent.

SULLIVAN, J. P., ROSENBERGER and WILLIAMS, JJ., concur.


ANDRIAS, J.

The issue in this stockholder's derivative action is whether plaintiffs' failure to demand, prior to suit, that Merrill Lynch's board of directors take some action on their complaint is fatal to their action.

The complaint asserts three causes of action: (1) intentional and/or reckless breaches of the defendant directors' fiduciary duties to the Company and its shareholders, (2) indemnification...

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