Pauline M. Golding v. K. B. Weissman Et Al‪.‬

[35 A.D.2d 941 Page 941] In this action brought derivatively on behalf of the corporate defendant, plaintiff in her amended complaint alleges that
appellants dominated and controlled the corporate defendant and were guilty, among other things, of breaches of fiduciary
duties. In moving for summary judgment, appellants asserted that the cause of action was barred by (1) a general release executed
to them by the corporate defendant and (2) an assignment of any cause of action such as plaintiff's to a third party. Documentary
evidence was submitted to establish both claims. In addition, proof was submitted that the general release was executed after
the corporate defendant came under the control of new management and following arm's length negotiations between such management
and appellants. Such a settlement, of course, would be binding on plaintiff in the absence of proof of fraud or bad faith
on the part of the corporate defendant (Mendelson Bros. Factors v. Sachs, 253 App. Div. 270, affd. 279 N. Y. 604). Plaintiff
submitted no such proof. Her opposition consisted of conclusory allegations in the nature of surmise, conjecture and suspicion
and repetition of the allegations in her amended complaint. Such are insufficient (Bank for Sav. v. Rellim Constr. Co., 260
App. Div. 70, 71, affd. 285 N. Y. 708; Indig v. Finkelstein, 23 N.Y.2d 728, 729). Similarly, plaintiff submitted no proof
to dispute the validity of the assignment by the provisions of which a third party undertook to assume all the obligations
of the corporate defendant. Lastly, this action has been pending for several years and discovery proceedings were not diligently
undertaken by plaintiff. There is no basis for the exercise by the court of the discretionary statutory relief vested in it
(CPLR 3212, subd. [f]) to enable plaintiff to attempt to gather the requisite proof at this late date.