Complaint Relating To Bankrupt Non-Party Dismissed For Failure To State A Claim

Posted: July 31, 2026 / Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. Turner / Categories Derivative Actions, Receivers, Motion to Dismiss

Complaint Relating To Bankrupt Non-Party Dismissed For Failure To State A Claim

On April 22, 2026, Justice Andrea Masley of the New York County Commercial Division identified various pleading deficiencies in granting defendants’ motion to dismiss a complaint seeking monetary and injunctive relief for misconduct alleged to have led to the bankruptcy of a non-party. The case is Mayer v. Goldner, Index No. 659341/2025.

Plaintiffs Gabriel Mayer and GM Evercore sued Samuel Goldner (“Sam”), along with Susan Goldner and six corporate entities (the “Assorted Properties LLCs”) that were alleged to be affiliated with, and whose management was alleged to be intertwined with, bankrupt non-parties Goldner Capital Management LLC (“GCM”) and certain affiliates. Plaintiffs’ first cause of action sought appointment of a receiver for the LLC properties. Justice Masley found that a prior bankruptcy court decision rejecting an application by plaintiffs to remove Sam as manager of the Assorted Properties LLCs was “binding on this court and thus plaintiffs’ request for a receiver is denied.” Slip op., p. 5.

Plaintiffs’ second (breach of fiduciary duty), third (corporate waste), fourth (conversion), fifth (unjust enrichment) and sixth (money had and received) causes of action were derivative, and dismissed for failure to plead demand futility. Id., citing Culligan Soft Water Co. v Clayton Dubilier & Rice LLC, 139 A.D.3d 621, 621 (1st Dep’t 2016.) While the second /fiduciary duty cause of action was also asserted directly, it was still subject to dismissal because the complaint alleged that GCM, not Sam, was the managing member of the Assorted Properties LLCs, and non-managing LLC members owe no fiduciary duty. Id., pp. 7-8. The seventh cause of action, for unjust enrichment, was dismissed as duplicative of the contract claim, and because plaintiffs did not respond to defendants’ argument that it, too, was derivative. Id., pp. 8-9. Justice Masley dismissed the eighth cause of action, for breach of contract, based on plaintiffs’ failure to oppose defendants’ argument that the complaint’s pleading supported liability, if at all, only as to non-party GCM, the managing member of the Assorted Properties LLCs, not as to Sam or Susan Goldner personally. She therefore did not need to reach the question of whether the eighth cause of action was also derivative. Id., p. 8.

Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning derivative actions, receivers, or motions to dismissjudgment collection or contempt applications.