Willcox v. Stern

¶1Judgment unanimously modified, on the law, on the facts and in the exercise of discretion, without costs or disbursements, to strike the leave granted to petitioner to serve an amended petition and in lieu thereof to provide that within 20 days after service of a copy of the order hereon with notice of entry, the petitioner may apply to Special Term for leave to replead; and order otherwise affirmed, without costs and disbursements. There is no showing that the petitioner “ has good ground to support ” an article 78 proceeding on theory of a failure and refusal of the respondent Superintendent of Insurance to evaluate the merger plan in the light of alleged fraud and breach of trust on the part of respondent Transamerica Insurance Company; and, consequently, leave to replead should not have been granted. (See CPLR 3211, subd. [e].) It does not satisfactorily appear that there is factual support for petitioner’s claims of fraud and breach of trust or that the same will furnish a basis for an attack upon the action of the Superintendent as unlawful, arbitrary or unreasonable. Furthermore, for all that appears, the petitioner may have an adequate remedy in the recovery of the value of his stock in the appraisal proceeding or the recovery of damages in a proper action. Concur— Botein, P. J., Breitel, McNally, Stevens and Eager, JJ. [44 Misc 2d 827.]