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MIAMI FIREFIGHTERS' RELIEF & PENSION FUND v. ICAHN

Index No. 657447/19. Appeal No. 14652-14652A. Case Nos. 2021-02437, 2021-02438.

199 A.D.3d 524 (2021)

158 N.Y.S.3d 44

2021 NY Slip Op 06446

Miami Firefighters' Relief & Pension Fund et al., Appellants, v. Carl C. Icahn et al., Respondents.

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

Decided November 18, 2021.

Attorney(s) appearing for the Case

Abraham, Fruchter & Twersky, LLP, New York ( Michael J. Klein of counsel), and Paskowitz Law Firm, PC, New York ( Laurence D. Paskowitz of counsel), for appellants.

Law Office of Robert R. Viducich, New York ( Robert R. Viducich of counsel), for Carl C. Icahn, High River Limited Partneship, Icahn Capital LP, Keith Cozza and Nicholas Graziano, respondents.

Cohen & Gresser LLP, New York ( Lawrence T. Gresser of counsel), for Giovanni Visentin, respondent.

The Samini Firm APC, New York ( Bobby Samini of counsel), for Jonathan Christodoro, respondent.

Fried, Frank, Harris, Shriver & Jacobson LLP, New York ( Scott B. Luftglass of counsel), for Joseph J. Echevarria and Cheryl Gordon Krongard, respondents.

King & Spalding LLP, New York ( Richard T. Marooney of counsel), for Andrew Scott Letier, respondent.

Wilkie Farr & Gallagher LLP, New York ( Sameer N. Advani of counsel), for Xerox Holdings Corporation, respondent.

Concur—Kapnick, J.P., Webber, Oing, Moulton, Rodriguez, JJ.

Plaintiffs properly alleged demand futility as required under Business Corporation Law § 626(c) by asserting that at least four out of seven of the members of derivative plaintiff/nominal defendant Xerox Holdings Corporation's board of directors were controlled by Icahn, Xerox's largest single shareholder, and thus lacked the independence to make an impartial decision on bringing suit (see Bansbach v Zinn, 1 N.Y.3d 1, 9 [2003...

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