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BUECHNER v. AVERY

38 A.D.3d 443 (2007)

836 N.Y.S.2d 443

JACK BUECHNER et al., Appellants, v. ALLAN R. AVERY et al., Respondents.

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

Decided March 27, 2007.

This is an action by shareholders and the bankruptcy trustee seeking to recover for the alleged misappropriation by insiders and others of the corporation's intellectual property, which had been collateral for a loan the corporation allegedly could not afford to repay and was obtained by the lender through strict foreclosure.

The motion court properly determined that the shareholder claims were derivative (see Tooley v Donaldson, Lufkin & Jenrette, Inc.,

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