BESSER v. Advest, Inc. and Edward Carlsen, Sr., Respondents-Appellants. (2004)

 We reject the contention of Advest, Inc. and Edward Carlsen, Sr. (respondents) that Supreme Court erred in failing to grant that part of their motion seeking dismissal of the claim pursuant to General Business Law § 349 and thus should have granted their motion seeking dismissal of the petition against them in its entirety.   Contrary to respondents' contention, petitioner has standing to assert a claim under section 349.   Although petitioner, the beneficiary of the trust underlying this dispute, failed to demand that the trustees bring a lawsuit on behalf of the trust in the first instance (see Velez v. Feinstein, 87 A.D.2d 309, 315, 451 N.Y.S.2d 110, lv. dismissed in part and denied in part 57 N.Y.2d 737, 454 N.Y.S.2d 987, 440 N.E.2d 1334;  Levy v. Carver Fed. Sav. & Loan Assn., 18 A.D.2d 1062, 239 N.Y.S.2d 384), we conclude that the allegations in the petition, when accepted as true, liberally construed, and accorded the benefit of every possible favorable inference (see Leon v. Martinez, 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972, 638 N.E.2d 511), are sufficient to allege the futility of such a demand (see Schlegel v. Schlegel Mfg. Corp., 23 A.D.2d 808, 808-809, 258 N.Y.S.2d 587;  see also Barr v. Wackman, 36 N.Y.2d 371, 381, 368 N.Y.S.2d 497, 329 N.E.2d 180;   Allison Publs. v. Mutual Benefit Life Ins. Co., 197 A.D.2d 463, 463-464, 602 N.Y.S.2d 858).   We further agree with petitioner that he is within the zone of interest to be protected by section 349 (see generally Matter of Fritz v. Huntington Hosp., 39 N.Y.2d 339, 346, 384 N.Y.S.2d 92, 348 N.E.2d 547).   Finally, we reject the alternative contention of respondents that the court erred in denying that part of their motion seeking to stay the proceeding with respect to the section 349 claim and to compel petitioner to arbitrate that claim.   There is no evidence establishing that the parties to the brokerage agreement intended petitioner to be bound by the arbitration clause therein and no evidence that petitioner intended to be so bound (see Mionis v. Bank Julius Baer & Co., 301 A.D.2d 104, 109, 749 N.Y.S.2d 497;  Matter of First Winthrop Props. [Carney], 177 A.D.2d 282, 283, 575 N.Y.S.2d 861;  Matter of Schneidman [Martin], 136 A.D.2d 481, 482, 523 N.Y.S.2d 119;  see also Greater N.Y. Mut. Ins. Co. v. Rankin, 298 A.D.2d 263, 748 N.Y.S.2d 381).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: