Plaintiff, an HBO Company (HBO) shareholder, brought this action, allegedly on behalf of similarly situated HBO shareholders, to recover damages for defendants' premature disclosure of a pending merger between HBO and McKesson Corporation. He alleges that, in consequence of defendants' premature disclosure, HBO's stock plummeted in value and the proposed merger with McKesson was aborted, resulting in further loss of opportunities and benefits to HBO. The claims asserted by plaintiff, however, clearly belong to the corporation, and, accordingly, may only be asserted derivatively (Abrams v. Donati, 66 N.Y.2d 951, 953). Plaintiff has alleged no facts to justify permitting him to proceed with this lawsuit except on the corporation's behalf (cf., Hammer v. Werner, 239 App. Div. 38), and, in particular, may not, as a shareholder, claim third-party beneficiary status under the consulting agreement between defendant Salomon Smith Barney and HBO, which, by its terms, explicitly stated that defendant investment group's duty under the engagement was to the corporation alone (see,Edward B. Fitzpatrick, Jr. Constr. Corp. v. County of Suffolk, 138 A.D.2d 446, 449-450, lv denied in part and dismissed in part 73 N.Y.2d 807 . Thus, any alleged intention to give the shareholders an enforceable right of action is negated (see, Artwear, Inc. v. Hughes, 202 A.D.2d 76, 81-84).
Plaintiff's additional arguments have been considered and found unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.