Eos Partners SBIC, L.P. ex rel. DDS Partners, LLC v. Levine

Order, Supreme Court, New York County (Harold B. Beeler, J.), entered December 1, 2005, which, insofar as appealed from, denied the motion to dismiss the derivative complaint as against defendants-appellants, unanimously reversed, on the law, without costs, and the motion to dismiss granted in its entirety on the ground that plaintiff failed to make a presuit demand upon the board of directors of nominal defendant DDS Partners, LLC (DDS) to prosecute the claims asserted herein, or, in the alternative, to sufficiently allege that such a demand would be futile. The Clerk is directed to enter…