Smachlo v. Bausch — 63 A.D.2d 871

Majority

p. 871

First Department,

June, 1978

(June 1, 1978)

Walter Smachlo, Suing Derivatively for the Benefit and in the Right of Bausch & Lomb Incorporated, Respondent-Appellant, v Carl L. Bausch et al., Appellants-Respondents.

Order of the Supreme Court, New York County, entered September 16, 1977, which partially granted defendants’ motion for summary judgment and partially granted plaintiffs cross motion for summary judgment, unanimously modified, on the law, to the extent of limiting the assessment of damages to the period subsequent to plaintiffs acquisition of stock in defendants’ corporation, and otherwise affirmed on the opinion of Fein, J., at Special Term, without costs or disbursements. We observe, with respect to the assessment ordered on the issue of damages, that such damages be limited to those, if any, which arose subsequent to plaintiff’s purchase of stock in defendants’ corporation. This view is supported by Austin v Gardiner (188 Mise 538), upon which plaintiff has relied. Concur—Murphy, P. J., Birns, Markewich and Yesawich, JJ.