LIPTON v. WACHTLER (2005)

Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered June 4, 2004, which, upon reargument, granted petitioner shareholder's application pursuant to Business Corporation Law § 619 to, inter alia, set aside the election of respondent Wachtler as a director of the subject corporation, unanimously affirmed, without costs.

 Petitioner is an aggrieved shareholder within the meaning of section 619, there being no dispute that respondent Wachtler did not receive 75% of the voting shares as required by the corporation's certificate of incorporation and bylaws to be elected director.   A contrary finding is not warranted by petitioner's participation in the challenged election and vote in favor of respondent Wachtler.  Section 619 is intended for the benefit of the shareholders as a whole, and thus, given a vote that is not unanimous, can be brought by any shareholder (see Matter of Hoe & Co., 14 Misc.2d 500, 504, 137 N.Y.S.2d 142 [1954], affd. 285 App.Div. 927, 139 N.Y.S.2d 883 [1955], affd. 309 N.Y. 719, 128 N.E.2d 420 [1955] ). Respondents' other arguments are unpreserved and we decline to review them.