Order, Supreme Court, New York County (Paul Wooten, J.), entered on or about June 25, 2012, which granted defendants’ motion to dismiss the complaint, unanimously affirmed, with costs.
Plaintiff seeks to vindicate its personal rights under article VII of the operating agreement of BDC 56, LLC, which specified that if any surplus revenue remained, those funds would be available for distribution pro rata to the members, including plaintiff, in accordance with their equity interests in the limited liability company. Plaintiff is therefore unable to bring a derivative action because the interests at issue are personal to it, not corporate (belonging to BDC 56) (see Yudell v Gilbert, 99 AD3d 108, 114 [1st Dept 2012]).
Plaintiff also failed to allege that a pre-suit demand would have been futile. A shareholder may not institute a derivative
We further observe that in addition to lacking standing to bring this derivative action, plaintiffs claims, including, inter alia, for breach of contract, breach of fiduciary duty and conversion, have been insufficiently pled. Concur — Mazzarelli, J.P., Renwick, DeGrasse, Feinman and Gische, JJ.
