On December 17, 2012, a majority of the shareholders and directors of each of the companies authorized the company to be merged into a corresponding Florida <mask> company *785(LLC) pursuant to Business Corporation Law § 904-a and section 608.438 of the Florida Limited Liability Company Act (Fla Stat § 608.401 et seq.). Those LLCs are 610 Smith St., LLC, 627 Smith St., LLC, Bayway Building, LLC, and 37 Bridge St. Realty, LLC. Each of the mergers was consummated not later than January 3, 2013. On December 27, 2012, Rand received official notice of the proposed mergers, by letter dated December 19, 2012.


Finally, we address relators' contention that the trial court exceeded its jurisdiction in limiting recovery against the bus driver to $100,000. We do not interpret the order as having that effect, but to avoid confusion we direct that it be modified so that the damage award limitation clearly applies only to Bi-State. The bus driver here is not protected by "official immunity," which precludes tort claims arising from discretionary acts or functions of the public officials engaged in the performance of their official duties. This driver, ... was not a public official performing a discretionary act, but rather was engaged in the ministerial matter of navigating a left turn." Id. at 675. More recent caselaw has similarly found that the immunity provision does not apply to the agent-employee of the government entity. See Cottey v. Schmitter, 24 S.W.3d 126, 128 (Mo. App. W.D. 2000) (Provisions of sovereign immunity statute that <mask> of Missouri Highway and Transportation Commission (MHTC) in negligence suit brought against MHTC and operator of snow plow by passenger of vehicle for injuries sustained when vehicle collided with snow plow did not apply to limit operator's liability); see also Cole ex rel. Cole v. Warren Cty. R-III Sch. Dist., 23 S.W.3d 756, 761 (Mo. App. E.D. 2000) (Bus driver employed by school district was not entitled to have verdict against him in personal injury action arising from bus accident reduced to maximum liability under statute limiting liability of public entities, as school district's sovereign immunity was not transferrable to its employee.)


In the first Supreme Court decision applying the limitation of liability (Hart v. Pennsylvania R. R. Co., 112 N. S. 331), the bill of lading was captioned ‘ ‘ <mask> Live-Stock Contract ” (p. 332). The first paragraph thereof was that plaintiff was to pay the rate expressed “ on the condition that the carrier assumes a liability on the stock to the extent of the following agreed valuation: ” (ibid.).


Appellants' arguments stretch the meaning of a private corporation to the breaking point. While it is true, as appellants and amici fear, that limiting the definition of a corporation to just those specialized corporate forms contained in the first part *548of the corporate code would exclude a wide range of potentially problematic organizations, such as the more recently created <mask> company (LLC) corporate form,5 this concern cannot be used to expand the concept to capture something like the Agency. Nor is it simply sufficient to argue the Agency is not a "public corporation" as that phrase is used in California law. Despite the inference in its analysis that the meaning of a private corporation should be understood broadly, nothing in our Supreme Court's analysis in Calfarm limited the notion of that phrase's antithesis to the strictly defined local governmental organizations historically imbued with the name public corporation. We further find no guidance in the law that would draw an arbitrary line between state and federal or federal and international governmental entity control when determining the public/private *549issue. Thus, while it is true that many of the statutes defining public entities focus on government at the state level, it is notable that Evidence Code section 200 takes a much broader view of the meaning of a public entity by expressly enveloping foreign entities.6 And while Calfarm does suggest that substantial governmental oversight at the state level is sufficient to classify an organization, such as the State Bar, as public and akin to a government agency, we see nothing in the court's analysis that limits the type of relevant oversight to the state level. As such, we reject appellants' claim that the phrase private corporation covers any legally formed and perpetual organization created and jointly operated by domestic and foreign governments.


" ' "Hearsay evidence" is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.' [Citation.] ' "Statement" means (a) oral or written verbal expression or (b) nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression.' [Citation.] ' "Person" includes a natural person, firm, association, organization, partnership, business trust, corporation, <mask> company, or public entity.' [Citation.] The Evidence Code does not contemplate that a machine can make a statement. " ( Id . at p. 1449, 121 Cal.Rptr.2d 627, italics added.) Hawkins agreed with cases from other jurisdictions that held automatically generated computer evidence was not hearsay:


Richard's counsel filed a response to the motion to compel that claimed: (1) Lori's *272counsel had failed to meaningfully confer on the disputes before filing the motion to compel, and some issues were raised for the first time in the motion; (2) upon receiving the motion with its explanation of Lori's complaints, Richard supplemented his document production; and (3) the Business Entities discovery was overbroad as seeking irrelevant information because the entities were <mask> companies whose assets are not subject to execution for an owner's debts. Lori's counsel filed a reply addressing these arguments. On April 25, 2015, the trial court signed an order overruling all the objections and set a specific date by which discovery to those requests, and RFP 27, must be produced.


There the plaintiff delivered goods to the warehouse which were not returned, the defendant offering no explanation other than speculation that they were stolen. The defense offered was that the warehouse receipt <mask> to $50 unless a higher value was placed on the merchandise, which the plaintiff had failed to do. The court found that the limitation of liability provision was unenforceable in light of its conclusion that (p 660): “proof of *925delivery of the stored property to the warehouse and its failure to return that property upon proper demand suffices to establish a prima facie case of conversion and thereby renders inapplicable the liability-limiting provision, unless the warehouse comes forward with evidence sufficient to prove that its failure to return the property is not the result of its conversion of that property to its own use.” With respect to defendant’s evidence on this point it was indicated that (p 664, n 3): “the warehouse is required to show not merely what might conceivably have happened to the goods, but rather what actually happened to the goods. Defendant proved only that theft was possible, and presented no proof of an actual theft. Hence, the proffered explanation was inadequate as a matter of law.”


The check-the-box regulations found in secs. 301.7701-1 through 301.7701-3, Proced. & Admin. Regs., provide the rules for the classification of business entities for Federal tax purposes. Comensoli v. Commissioner, T.C. Memo. 2009-242, 98 T.C.M. (CCH) 362, 363 (2009), aff’d, 422 F. App’x 412 (6th Cir. 2011). Under the check-the-box regulations, a business entity, such as a <mask> company, with two or more members can be classified as either a partnership or a corporation. Id. A new domestic unincorporated entity, other than a single-owner entity, is a partnership for tax purposes unless the entity makes an affirmative election to be an association taxed as a corporation. Sec. 301.7701-3(a) and (b)(1)(i), Proced. & Admin. Regs. Because no election was made, Enterprises’ default classification was partnership.


Under the facts and circumstances presented, this court exercises its discretion and decrees judicial dissolution of Lighthouse Solutions, LLC as it is not reasonably practicable for Lighthouse to carry on its business in conformity with an operating agreement that explicitly requires the dissolution and winding up of Lighthouse prior to withdrawal of one of its members, Timothy Spires (see <mask> Company Law § 702).


In 2008 Tang Energy, Aviation Industry of China (AVIC HQ) through its subsidiary AVIC USA, and others formed Soaring Wind Energy LLC (Soaring Wind) to develop wind farms and promote wind power equipment sales.1 The parties executed a contract titled "<mask> Company Agreement of Soaring Wind Energy, LLC" (the Soaring Wind agreement). As part of the contract, the parties agreed that Soaring Wind's "Business" would be "to provide worldwide marketing of wind energy equipment, services, and *803materials related to wind energy including, but not limited to, marketing wind turbine generator blades and wind turbine generators and developing wind farms." The agreement included an exclusivity provision stating that, "during the term of this Agreement, each [party] shall only conduct activities constituting the Business in and through the Company and its Controlled subsidiaries."


At the time of the accident, the defendant, William P. Cassidy, was insured under a contract of automobile liability insurance with the Allstate Insurance Company (hereinafter Allstate) with limits of liability for bodily injury of $50,000/$100,000. Helen Buxbaum was insured through her husband Jeffrey’s policy with the Metropolitan Property and Liability Insurance Company (hereinafter Metro), which policy contained an indorsement for Supplementary Uninsured Motorist Insurance with a <mask> of $100,000 pursuant tio Insurance Law § 167 (2-a). Such additional coverage is commonly known as underinsurance and, indeed, the policy issued by Metro to Mr. Buxbaum included as an amendment (subdivision 2b) the following definition: “The term ‘underinsured motor vehicle’ means a motor vehicle with respect to the ownership, maintenance or use of which the sum of the limits of the liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under this insurance.”


*210This action is brought as a class action on behalf of the named, plaintiff and all other similarly situated business entities (e.g., partnerships and <mask> companies) that are required by the County Clerks in the City of New York to publish legal notices of their formation or qualification to do business in the New York Law Journal which is published by the named defendants. It is claimed that the mandatory use of the Law Journal has created a de facto monopoly, allowing defendants to inflate the publication rates for business entities doing business within the City of New York (hereinafter the City). More particularly, it is alleged that the Law Journal charges $8.55 per line (with a 14 line minimum) to publish such notices for non-corporate businesses located within the counties constituting the City, as compared to a rate of $2.25 per line (with a 14 line minimum) for similar business entities located outside the City limits.


So too here. The fraudulent misrepresentations of Harbour and Wells Fargo alleged in the complaint were not designed to induce Hilliard to create a corporate entity, but to induce conduct on the part of the James Crystal Companies-a <mask> company he controlled that already existed, whose assets consisted of corporations and limited liability companies that also already existed-to act in a manner inimical to its corporate interests. Sutter does not show that, as Hilliard claims, "the fraud committed by Harbour and Wells Fargo was directed only to him and affected him directly."


In the instant case, the evidence is that Alston carried on the business of Clifton until the day he died. The <mask> Company Law provides that, unless provided otherwise in the operating agreement, management of the company is vested in its members. (Limited Liability Company Law § 401.) In such cases, “any such member exercising such management powers or responsibilities shall be deemed to be a manager” and “shall have and be subject to all of the duties and liabilities of a manager.” (Limited Liability Company Law § 401 [b].) Therefore, Sealy had no cause of action to seek the dissolution of Clifton prior to Alston’s death in 2006. Based on the above, Sealy’s cause of action for dissolution is not barred by the statute of limitations.


(a) A holder of shares, an owner of any beneficial interest in shares, or a subscriber for shares whose subscription has been accepted, or any affiliate of such a holder, owner, or subscriber or of the corporation, may not be held liable to the corporation or its obligees with respect to: .... (2) any contractual obligation of the corporation or any matter relating to or arising from the obligation on the basis that the holder, beneficial owner, subscriber, or affiliate is or was the alter ego of the corporation or on the basis of actual or constructive fraud, a sham to perpetrate a fraud, or other similar theory; .... (b) Subsection (a)(2) does not prevent or limit the liability of a holder, beneficial owner, subscriber, or affiliate if the obligee demonstrates that the holder, beneficial owner, subscriber, or affiliate caused the corporation to be used for *213the purpose of perpetrating and did perpetrate an actual fraud on the obligee primarily for the direct personal benefit of the holder, beneficial owner, subscriber, or affiliate. TEX. BUS. ORGS. CODE ANN. § 21.223 (West 2012). The principles applicable to piercing the corporate veil apply equally to <mask> companies. McCarthy v. Wani Venture, A.S. , 251 S.W.3d 573, 590-91 (Tex. App.-Houston [1st Dist.] 2007, pet. denied) ; see TEX. BUS. ORGS. CODE ANN. § 101.002(a) (West 2012) (providing that section 21.223 applies to limited liability companies and their members). Although "actual fraud" is not statutorily defined, courts have construed that term, for purposes of piercing the corporate veil, as "involv[ing] dishonesty of purpose or intent to deceive." Tryco Enters., Inc. v. Robinson , 390 S.W.3d 497, 508 (Tex. App.-Houston [1st Dist.] 2012, pet. dism'd) ; see TecLogistics, Inc. v. Dresser-Rand Grp., Inc. , 527 S.W.3d 589, 598 (Tex. App.-Houston [14th Dist.] 2017, no pet.).


Under the UPA, a partnership is "an association of two or more persons," and the term "person" is defined to include a "trust." ( Corp. Code, § 16101, subds. (9) & (13).) Specifically, the UPA defines a person as "an individual, corporation, business trust, estate, trust, partnership, limited partnership, <mask> partnership, limited liability company, association, joint venture, government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity." (Id. , subd. (13).) Thus, the statute on its face includes both a "business trust" and a *534"trust" among the "person[s]" that may associate in a partnership.9


Nowhere in the agreement other than the “challenge” in paragraph 11 is there any description of the process to be followed should a customer want to file a claim against E-Z Pass or commence a civil action. The only reference is that cited above requiring sending a letter to the E-Z Pass Service Center. Nowhere in the agreement is E-Z Pass as an entity described. Does it have its own existence as a corporation, partnership, <mask> company or other legal entity? Nowhere in the agreement is there an explanation as to why the TBTA is defending this action and not E-Z Pass.


The action was commenced after the suspension of Dr. Braver, but before the expiration of the six-month period to take action on the disqualification. (<mask> Company Law § 1210.) Therefore, while the action was timely and properly commenced, the maintenance of the action without a qualified member in ownership of the entity must be considered a nullity. Even though the defendant failed to couch the application to dismiss on other than alleged fraudulent grounds, the plaintiff has not shown legal basis to maintain this action. Clearly, the plaintiff must satisfy the legal requirements in order to maintain its case and pursue causes of actions available.


Defendant also proved that plaintiffs ownership has changed since its initial organization, and while certain other health services were variously added and dropped, the same psychologist, and no other, continued to be listed as a member and manager of plaintiff. Not only was the foregoing sufficient to defeat plaintiffs motion for summary judgment, it also satisfied defendant’s burden of proof on its cross motion for summary judgment by demonstrating that plaintiff performed psychological services in violation of <mask> Company Law §§ 1203 and 1207.


Shortly after the creation of the LLCs, Virani sought to open a bank account for each of the LLCs with Chase Bank. Several days after Virani initially made this inquiry, he, Sohani, and Sunesara all went to a branch of Chase Bank, and each of them signed a signature card for each of the three LLCs. Virani and Sohani were present when Sunesara signed the signature cards. Each signature card listed Virani, Sohani, and Sunesara as a "Member." The "Business Depository Resolution" for each of the three accounts included a certification by the signatories that the business is "a <mask> company organized under the laws of the state/country of USA and the individuals signing this Resolution constitute all of the members or managers, as appropriate[,] of the company." This document, like the signature cards, listed Virani, Sunesara, and Sohani as a "Member." Each of the three men signed this document under a heading stating, "For Limited Liability Company (all members/managers must sign)[.]" Sunesara testified that the bank required a copy of the Certificate of Formation for the LLCs before it would open the accounts and that Virani provided the certificates to the bank.


As we alluded to earlier, the history of the different entities and their relationship with each other is more than convoluted. For example, in Walton's motion to dismiss, he brought to the trial court's attention the existence of another <mask> company, also called "Miami Legal Resources, LLC," which had filed its articles of organization with the state of Florida in September 2015. Walton appears to have been anticipating that Miami Legal would argue that all of its assets were transferred to this new entity and so could continue the lawsuit as before. In its opposition, however, Miami Legal conceded that this new entity was "irrelevant" to Walton's motion. Why there is or was a second entity using the same name as the first (or even whether it is or was indeed a truly separate entity) has never been explained by Miami Legal and has only added to the convoluted background of this case. The record does show that the first Miami Legal was dissolved in September 2014. And the current status report available from Florida's Division of Corporations, which we take judicial notice of on our own motion, shows the second Miami Legal appears to be operating under the same taxpayer identification number as the first Miami Legal. (See Florida Division of Corporations, < http://search.sunbiz.org/Inquiry/CorporationSearch/SearchResultDetail?inquirytype=EntityName& directionType=Initial& searchNameOrder=MIAMILEGALRESOURCESL¨150001509300& aggregateId=flal-l15000150930-fc58a47e-9a4f-4a34-ba92-46fbed3e9c8c& searchTerm=MiamiL¨egal& listNameOrder=MIAMILEGALASSISTP¨160000012750>, as of Jun. 6, 2017.) Because Walton's motion did not cite any state statute regarding Miami Legal's status and relied only on standing and jurisdictional arguments, we need not discuss this topic in detail.


14 Movie Grill also contends that paragraph 17 of the second amended complaint says Panterra Development was registered as a <mask> partnership “to avoid liability.” While we are not certain we concur in Movie Grill’s reading of that paragraph, the more important point is that it would not be dispositive even if true. That Panterra Development may have been organized as a limited liability partnership in order to limit liability is not inconsistent with the allegation that Panterra GP was the contractor for the Movie Grill project. 16. III. Panterra GP Alleged Facts Sufficient to Support a Claim for Reformation “When, through … mutual mistake of the parties, or a mistake of one party, which the other at the time knew or suspected, a written contract does not truly express the intention of the parties, it may be revised on the application of a party aggrieved, so as to express that intention, …”15 (Civ. Code, § 3399.) Although “reformation” is sometimes casually referred to as a cause of action, it is actually a remedy. Reformation is not the court creating a new agreement but rather enforcing the actual agreement already made by the parties.16 (Ramseier v. Oakley Sanitary Dist. (1961) 197 Cal.App.2d 722, 725.) The operative complaint alleged a prima facie case for reformation. The complaint alleged that Rosedale and Movie Grill intended for Panterra GP to perform the work and that, despite this mutual intent, defendants drafted a contract that mistakenly listed Panterra Development as the contractor for the project. Movie Grill contends that Panterra GP’s pursuit of reformation is improper because reformation is an equitable remedy and equitable remedies are foreclosed by subdivision (a). It is true that subdivision (a) precludes equitable remedies. But it only does so with respect to equitable remedies sought by an unlicensed entity. Panterra GP is not an unlicensed entity. Movie Grill also argues that the reformation sought by Panterra GP is not permitted under a Supreme Court case from 1900: Mabb v. Merriam, supra, 129 Cal. 663. That decision prohibited a court of equity from making a “new contract” –


indemnify him could only be asserted once the Jordans established that his potential liability implicated a covered loss. The court reasoned that because “the jury [in the Jordans’ underlying action] has now determined that the plaintiffs should not recover anything on their bodily injury claims [t]his factual finding should control . . . . On this record, Evanston is not required to indemnify Zucker for the $20 million pre-trial consent judgment.” However, the district court nonetheless required “Evanston to continue to defend its insureds against the Jordans’ product liability claims.” Both parties appealed. The Jordans challenge the district court’s determination that Evanston was not obligated to fund their settlement with Zucker, and Evanston cross-appeals the court’s earlier conclusion that Evanston had timely received notice of a claim made by the Jordans. II. A. We review summary judgments de novo. RealPage, Inc. v. Nat’l Union Fire Ins. Co., --- F.4th ----, ----, No. 21-10299, 2021 WL 6060972, at *2 (5th Cir. 2021) (quoting Luminant Mining Co. v. PakeyBey, 14 F.4th 375, 379 (5th Cir. 2021)). Likewise, “[a] district court’s interpretation of an insurance contract is a question of law reviewed de novo.” Columbia Cas. Co. v. Ga. & Fla. RailNet, Inc., 542 F.3d 106, 110 (5th Cir. 2008) (citing Am. States Ins. Co. v. Bailey, 133 F.3d 363, 369 (5th Cir. 1998)). Before analyzing Evanston’s policy, we must determine what law applies to its interpretation. This case involves Mississippians suing insurance companies in federal district court in Mississippi over a policy issued to a New York <mask> company in New York. When a federal court hears a diversity case, “the choice of law rules of the forum state . . . determine which state’s substantive law applies.” Hartford Underwriters Ins. Co. v. Found. Health Servs., Inc., 524 F.3d 588, 593 (5th Cir. 2008) (citing In


Irving Rosen, J. This is an action by the plaintiff to recover monies from the defendants for goods sold and delivered in the nature of fuel oil delivered to the premises known as 202 East 13th Street, New York, New York. The individual defendants, Steve Croman and Harriet Croman (hereinafter the Cromans), now move to dismiss this action against them pursuant to CPLR 3211 (a) (7) and <mask> Company Law § 609. The Limited Liability Company defendant, 99-105 3rd Avenue Realty LLC, also known as 99-105 Third Avenue Realty LLC (hereinafter the LLC), moves to dismiss this action against it pursuant to CPLR 3211 (a) (8) on the grounds that the court lacks personal jurisdiction over it.


In this action brought pursuant to the Telephone Consumer Protection Act of 1991 (TCPA) (47 USC § 227), plaintiff alleged in a verified complaint that defendants had made at least 30 telephone calls using an artificial or prerecorded voice delivering a message that advertised the commercial availability or quality of property, goods or services of Green Bullion Financial Services, LLC (Green Bullion), in violation of 47 USC § 227 (b) (1) (B) and 47 CFR 64.1200 (a) (2). The complaint further alleged that Green Bullion is, and at all relevant times was, a <mask> corporation existing under the laws of Florida. Defendants Jeff Aronson and Howard Mofshin are, and at all relevant times were, the chief executive officer and president, respectively, of Green Bullion.


Moreover, it is undisputed that Benevento is the transferee of one half of the interest held by Julia, and, thus, the holder of a “beneficial interest” in 2784 LLC. Such a beneficial interest has been recognized as conferring standing upon a party to bring a derivative action on behalf of a corporation pursuant to Business Corporation Law § 626 (a) (see Bernfeld v Kurilenko, 91 AD3d 893, 894 [2d Dept 2012]; Shui Kam Chan v Louis, 303 AD2d 151, 152 [1st Dept 2003]), which has been held applicable to <mask> companies (see Tzolis v Wolff, 10 NY3d 100, 121 [2008]). While this is not a derivative action, this beneficial interest likewise furnishes a basis for Benevento’s individual claims against 2784 LLC and Burns, and the fact that *292Benevento obtained his interest through the estate of Julia does not deprive him of standing in this action (see Bernfeld, 91 AD3d at 894).


The definition of "person" was "an individual, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity." The Conference also stated in its 1992 comments that "[a] <mask> company is another legal entity within the definition of 'person,' " and in its 1994 comments that the definition "includes other legal or commercial entities such as limited liability companies."


The relationship among the Watson entities is alleged as: "Actavis PLC is a public limited company incorporated in Ireland with its principal place of business in Dublin, Ireland. Watson Pharmaceuticals, Inc. acquired Actavis, Inc. in October 2012 and the combined company name was changed to Actavis, Inc. as of January 2013. The combined company then became a wholly[-]owned subsidiary [of] Actavis PLC in October 2013. Watson Laboratories, Inc. is a Nevada corporation with its principal place of business in ... California, and is a wholly[-]owned subsidiary of Actavis, Inc. ... a Nevada Corporation with its principal place of business in ... New Jersey. Actavis Pharma, Inc. is a Delaware corporation with its principal place of business in New Jersey, and was formerly known as Watson Pharma, Inc. Actavis LLC is a Delaware <mask> company with its principal place of business in ... New Jersey. Each of these defendants is owned by Actavis [PLC], which uses them to market and sell its drugs in the United States." (Some capitalization omitted.)


The plaintiff attacks the validity of the limitation of liability clause largely along the ground of the defendant’s non-compliance with section 217, subdivision a, section 217, subdivision d, and section 219 of the Motor Carrier Act, 1935 (U. S. Code, tit. 49, § 317, subds. a, d, and § 319), an amendment to the Interstate Commerce Act regulating transportation generally by motor vehicles. These sections in substance require: The filing of a complete schedule of all rates, fares and charges by motor carriers;' *660forbid their engagement in interstate commerce until they comply therewith; permit limitation of liability only on proper filing of alternative rates which give the shipper a choice between a <mask> at a low rate and a full valuation at a higher rate. The court finds from the evidence that the Interstate Commerce Commission, by a series of orders issued by it, expressly postponed the date on which these sections were to become law to March 31, 1936. This they did pursuant to section 227 of the act (U. S. Code, tit. 49, § 327) which vested in the Commission the power to postpone any provision of the act whenever they deemed such action necessary, up to April 1, 1936.


Thus, in section 101 of the Social Welfare Law, the word “ cMld ” is linked with “ husband,” “ wife,” “ father,” “ mother,” “ grandparent ” and “ grandchild,” all of them familial terms. Likewise subdivision 4 of section 101 of the Domestic Relations Court Act of the City of New York is part of a statute creating and defining the powers of a Family Court; and the word “ cMldren ” is there too grouped with familial terms, together with a direction *766for apportioning the burden of support of the dependent “ poor relative ” according to the respective means of the constituents of the entire group of “ parents,” “ grandparents,” “ children ” and “ grandchildren ” before the court. Yet in New York State a child born out of wedlock is not on a parity with legitimate offspring; he is without any rights of inheritance from or thru his father; the latter is not under obligation for his support save a <mask> imposed by statute (People ex rel. Lawton v. Snell, 216 N. Y. 527) and within the city of New York solely enforcible in a criminal court (Inferior Criminal Courts Act, § 60); his statutory right of inheritance from his mother is restricted to inheritance from the mother herself (Matter of Cady, 257 App. Div. 129; affd., 281 N. Y. 688; Matter of Lauer, supra,)] and, even as to the mother, such statutory right exists only if she die without leaving legitimate issue: (Dec. Est. Law, § 83, subd. 13; Matter of Battalico v. Knickerbocker Fireproof Co., 250 App. Div. 258, at p. 262.) To impute to a Legislature which still withholds from a child born out of wedlock normal rights of inheritance and support an inconsistent intent nevertheless to cast upon such disparaged individual the burden of supporting his parents apportionably with favored lawful offspring would be unreasonable and also violate a general rule of statutory interpretation firmly established in this State, namely: “ It is a rule of construction that, prima facie, the word ' child ’ or ‘ children,’ when used in a statute, will or deed means legitimate child or children. In other words, bastards are not within the term ‘ child ’ or ' children.’ * * * And the rule is well settled that words having precise and well-settled meaning in the jurisprudence of a country have the same sense in its statutes unless a different meaning is plainly intended.” (Bell v. Terry & Tench Co., 177 App. Div. 123, at p. 124, 125.)


The return to defendant of $300,000 of his invested capital was a distribution pursuant to <mask> Company Law § 102 (i) and the DLLCA, and consequently is subject to the three-year limitation period set forth in both section 508 (c) of the Limited Liability Company Law and section 18-607 (c) of the Delaware Limited Liability Company Act. Hence, plaintiffs causes of action are time-barred as the distribution occurred more than three years prior to the institution of this action. Accordingly, defendant’s motion is granted, and the clerk shall enter judgment dismissing the complaint.


I do not agree with this contention. Though the Legislature. *811might have used less involved phraseology, I believe that the meaning of the section is quite clear. It abolishes the un<mask> of a restaurant keeper in all cases of bailment which, whether actual or constructive, is based upon the contractual obligation to return property intrusted to his care. In those cases the liability is limited to seventy-five dollars when no value is stated and to one hundred dollars when it is stated and receipt is given, but the limitation of liability is applicable in neither event when the claim is based upon the negligence of the restaurant keeper. Such a radical and startling change of the law as contended for by the defendant should not be accepted unless the unmistakable language of the statute compels it. Bearing in mind the ever-increasing habit of a large part of our urban population to visit restaurants, it is well nigh impossible to conceive, even if it were at all practicable, that in every instance the value of the property deposited in the cloak room be stated and a written receipt be exacted. Upon the defendant’s contention a failure to do so would relieve the restaurant keeper from all liability in excess of seventy-five dollars. This would be nothing short of putting a premium upon the dishonesty of unscrupulous restaurant keepers.


Sohani and Virani also moved for judgment notwithstanding the verdict (JNOV). Sohani and Virani argued that Sunesara presented only his self-serving testimony that he was a member of the LLCs and had made contributions to the LLCs, but he did not present any evidence of a written or oral agreement entitling him to membership and one-third of the profits of the LLCs. As support, Sohani and Virani cited Business Organizations Code section 101.201, which provides that profits and *402losses of a <mask> company "shall be allocated to each member of the company on the basis of the agreed value of the contributions made by each member, as stated in the company's records." Sohani and Virani argued that, even if Sunesara made contributions to the LLCs, he failed to present any evidence that his contributions entitled him to one-third of the profits of the LLCs.


LTD, LLC; LAUREN SMITH, A MEMBER ON BEHALF OF HERSELF AND DERIVIATIVELY ON BEHALF OF NOMINAL DEFENDANTS JOSHCO GROUP, LLC, D/B/A VETERAN BENEFITS GUIDE, JOSHCO GROUP TECH, LLC, VETERAN BENEFITS GUIDE NV, LLC, VETERAN BENEFITS GUIDE CA, LLC, AND KPC HOLDINGS LTD, LLC; VETERAN BENEFITS ADVANTAGE, A CALIFORNIA <mask> COMPANY; JOSHUA SMITH, AN INDIVIDUAL; LAUREN SMITH, AN INDIVIDUAL; AND MICHAEL LICARI, AN INDIWDUAL, Respondents.


The note purchase agreement is null and void, ab initio, because Spivak apparently had no authority to bind TIC to the terms of that agreement. TIC’s transfer of the Tripoint assets would have constituted a transfer of all, or substantially all, of TIC’s assets. <mask> Company Law § 402 (d) (2) states that “[e]xcept as provided in the operating agreement, * * * the vote of at least a majority in interest of the members entitled to vote * * * shall be required to * * * approve the sale, exchange, lease, mortgage, pledge or other transfer of all or substantially all of the assets of [a] limited liability company.”


Lisa M. Fisher, J. Petitioners, comprised of both a not-for-profit, nonpartisan public policy and law institute, and several former, current, and aspiring politicians who are New York residents and registered voters representing multiple party lines, commenced this hybrid CPLR article 78 proceeding/declaratory judgment action to challenge the action taken at respondent’s Commissioners’ meeting held on April 16, 2015. The pertinent part of such meeting involved campaign finance laws and <mask> companies (hereinafter LLCs).


Borden Dairy Kentucky, LLC (“Plaintiff”) is a producer of dairy products. In January 2014, Mike Tamarit (“Defendant”) signed a credit application and terms agreement with Plaintiff on behalf of Borden Southern Distribution, LLC (“BSD”), pursuant to which BSD was authorized to distribute Plaintiff’s dairy products within a specified region. At the same time, Defendant signed a personal guaranty that obligated him to pay any amounts not paid by BSD. Defendant was the original owner of all membership interests in BSD, a <mask> company, and was the sole member—sole owner—of BSD when the agreements were signed.


*438This court must now assess the ability to carry on the business of Lighthouse in conformity with the statutory operating agreement. Based, on the terms of the default statutory operating agreement applicable to Lighthouse, it is “not reasonably practicable” for Lighthouse to carry on its business in conformity with the operating agreement. The terms of the operating agreement require the dissolution and winding up of Lighthouse prior to the withdrawal of its member, Timothy Spires (<mask> Company Law § 606 [a]). Spires’ withdrawal as a member of the LLC, or his removal by the remaining members of the LLC, triggers the dissolution and winding up of Lighthouse (Limited Liability Company Law § 606).4 There is no other provision or mechanism in the statutory operating agreement for Timothy Spires, as a member of Lighthouse, to withdraw or be removed from the business.


"There is an important limitation on the creditor's liability, however. The wording of the Notice includes the sentence 'Recovery hereunder by the debtor shall be limited to amounts paid by the debtor hereunder.' This limits the consumer to a refund of monies paid under the contract, in the event that an affirmative money recovery is sought. In other words the consumer may assert, by way of claim or defense, a right not to pay all or part of the outstanding balance *423owed the creditor under contract; but the consumer will not be entitled to receive from the creditor an affirmative recovery which exceeds the amount of money the consumer has paid in." ( 41 Fed. Reg. 20023.) Thus, "the purpose of this language is clearly to 'not permit a consumer to recover more than he [or she] has paid. ...' M. Smith, Preserving Consumers' Claims and Defenses, 63 A.B.A.J. 1400, 1402 (1977). See also 40 Fed. Reg. 53506, 53527 ; Eachen v. Scott Housing Systems, Inc., 630 F.Supp. 162, 164-65 (M.D.Ala.1986). A rule of un<mask> would place the creditor in the position of an insurer or guarantor of the seller's performance." ( Riggs , supra , 32 F.Supp.2d at p. 417.)


In Stevens v. Peoples Bank of Hamburg (157 Misc. 77) the question was raised as to whether the words “ for * * * life” <mask> to the life of the husband should he be the first to die. The court said (p. 79): “ It is perfectly obvious that the words ‘ for her suitable care and maintenance during life ’ apply to and mean the life of the wife and that it would be a distortion of the language of the statute to hold that the meaning of said phrase was during the joint lives of the husband and wife. In construing the language. of this statute it must be remembered that the remedy afforded to the husband is rather a drastic one when it is considered that a wife who, had she remained sane, had certain statutory rights given her in' the event that she survived her husband. The statute, while giving-relief to the husband under such unfortunate circumstances, clearly, from the language thereof, did not intend that the security required to be given should continue only during the life of the husband. It would seem under all of the circumstances that it was the intention of the statute to provide for the care and maintenance of the wife during her life in lieu of her right to inherit as a surviving spouse, and to hold otherwise, particularly in this case where the bond states ‘ her life, ’ would be a miscarriage of justice. ’ ’


. For the provision as to the minimum charges to have any rational meaning, the specification of 120 pounds must be an absolute. The court so finds and holds that, regardless of the weight of the package, the minimum charge under the tariff shall be 120 times the appropriate rate. Since here the released value charge came to $4.89, it was proper for the defendant to determine whether the minimum charge was more or less than $4.89. According to the tariff, 120 times the class rate resulted in a minimum charge of $5.75. Since the released value charge was less than the permitted minimum, the defendant could impose the minimum charge of $5.75 subject only to one limitation, i.e., the minimum charge so imposed could not vitiate the plaintiff’s right to obtain a reduced rate in consideration of defendant’s <mask> to 50 cents per pound.


. These statutes do not preclude the agency from promulgating the regulations governing the administrative costs and executive compensation that are reimbursed by taxpayer funds. All three statutes contain language making corporate powers “subject to any limitations provided in . . . any other statute of this state” (N-PCL 202 [a]; Business Corporation Law § 202 [a]; <mask> Company Law § 202). In the court’s view, this language subjects the corporations’ general powers to more specific limitations imposed not only by other statutes, but also by regulations duly promulgated under other statutes. Because the court has concluded that the legislature authorized the Department of Health to establish limits on health care expenses paid for by state funds or state-authorized funds, the regulations pertaining to administrative costs and the “hard cap” on executive compensation are not in conflict with the statutes generally governing corporate powers.


For the Ferguson holding to serve as a bar to Blackground’s negligence cause of action, the question that the court must answer, and which neither party has briefed, is whether or not Aaliyah was an employee of Blackground at the time of her death in August 2001. New York Labor Law article 6, which governs an employer’s payment of wages and benefits to an employee, defines an employee as “any person employed for hire by an employer in any employment” (Labor Law § 190 [2]). In a similarly broad fashion the section defines an employer as “any person, corporation, <mask> company, or association *184employing any individual in any occupation, industry, trade, business or service” (Labor Law § 190 [3]). When determining whether an employer-employee relationship exists for the purposes of article 6 of the Labor Law, the critical inquiry is the degree of control exercised by the purported employer over the results produced or the means used to achieve those results (Bynog v Cipriani Group, 1 NY3d 193 [2003]). The factors relevant to assessing such control include whether the worker (1) worked at her own convenience, (2) was free to engage in other employment, (3) received fringe benefits, (4) was on the employer’s payroll, and (5) was on a fixed schedule (id.).


As discussed above (part II [A]), petitioner has established that it is a Delaware <mask> company authorized to do business in this state. Moreover, a party asserting a defense based on Business Corporation Law § 1312 bears the burden of proof on the issue. (Great White Whale Adv. v First Festival Prods., 81 AD2d 704 [3d Dept 1981].) Here, respondent submitted no evidence that petitioner lacked authority to maintain the instant proceeding.


In Matter of Horning v Horning Constr., LLC (12 Misc 3d 402 [Sup Ct, Monroe County 2006]), the court held that the requirements for a judicial dissolution pursuant to <mask> Company Law § 702 were more stringent than those under the Business Corporation Law or Partnership Law. “Dissolution in the absence of an operating agreement can only be had upon satisfaction of the standard of section 702, i.e., ‘whenever it is not reasonably practicable to carry on the business.’ ” (Id. at 408.)


Rodriguez argues that this reasoning is inconsistent with Castro v. Cammerino , 186 S.W.3d 671 (Tex. App.-Dallas 2006, pet. denied). In Castro , a pedestrian brought a personal-injury action against a bus driver employed by an independent contractor pursuant to a contract with Dallas Area Rapid Transit (DART), for injuries she suffered when she was struck by a bus. Id. at 673. The court of appeals held that although the bus driver wore a DART uniform and drove a DART bus, he was an employee of an independent contractor, and therefore was not entitled to protection under the election-of-remedies provision. Id. at 678-79. The court of appeals' construction of the relevant provisions of the TTCA opens a loophole that creates un<mask> for the employee of a contractor who is performing an essential governmental function. This does not comport with the TTCA or the intent behind it. Therefore, we disapprove Castro to the extent that it is contrary to our opinion here.


Because the court has concluded that the second and fourth through seventh causes of action are all derivative in nature, and are all subject to a contemporaneous ownership requirement, and because plaintiff indisputably tendered his membership interest in exchange for the right of payment under the terms of the operating agreement, the court grants the motion to dismiss and need not reach the issue of whether a demand is required. However, given the conclusion with respect to the contemporaneous ownership requirement, this court can see no basis upon which to conclude that a demand limitation should not be imposed in the <mask> context similar to what is imposed in the business corporation and limited partnership contexts.


The regulations use the term “eligible entity” to refer to a “business entity” other than a state law corporation or other entity that is required to be classified as a corporation for Federal tax purposes. Treas. Reg. § 301.7701-3(a). An entity is a business entity if it is recognized for Federal tax purposes and not classified as a trust “or otherwise subject to special treatment under the Internal Revenue Code.” Treas. Reg. § 301.7701-2(a). Thus, <mask> companies like International Properties are generally eligible entities. - 12 -


At the time that White Lion was formed, the creation of <mask> companies was governed by the Texas Limited Liability Company Act. See Act of May 25, 1991, 72d Leg., R.S., ch. 901, § 46, 1991 Tex. Gen. Laws 3161, 3192-216 (amended 2003, 2007, 2009, 2011, 2013) (current version at Tex. Bus. Orgs. Code §§ 101.001 -.622). Prior to trial in this case, the legislature promulgated the Business Organizations Code, which became effective in January 2006 before the State filed its suit and governs, among other things, the creation of limited liability companies. See Act of May 13, 2003, 78th Leg., R.S., ch. 182, § 1, 2003 Tex. Gen. Laws 267, 267-595 (adopting prior version of Business Organizations Code); see also Tex. Bus. Orgs.Code §§ 402.001, .003, .005 (setting out transitional period by which entities formed prior to passage of Code were governed by prior law, procedure by which previously existing entity may elect to be governed by Code, and deadline by which Code provisions begin to apply to previously existing entities). Both the Act and the Code mandate that "a member or manager is not liable for the debts, obligations or liabilities of a limited liability company including under a judgment, decree, or order of a court" "[e]xcept as and to the extent the" agreement of the company specifically provides "otherwise." Tex. Bus. Orgs.Code § 101.114 ; Act of May 25, 1991, 72d Leg., R.S., ch. 901, § 46, art. 4.03, 1991 Tex. Gen. Laws 3161, 3203. Further, the Act and the Code explain that a "member of a limited liability company" may only be named as a party in an action "by or against" the company if the suit is brought "to enforce a member's right against or liability to the" company. Tex. Bus. Orgs.Code § 101.113 ; Act of May 25, 1991, 72d Leg., R.S., ch. 901, § 46, art. 4.03, 1991 Tex. Gen. Laws 3161, 3203. Neither the Act nor the version of the Code in effect at the time of the lawsuit mentioned "veil-piercing principles as an exception to limited liability or whether or how such remedies might be applied against" limited liability companies. See Shook v. Walden, 368 S.W.3d 604, 613 (Tex.App.-Austin 2012, pet. denied) (discussing absence of veil-piercing provisions from Act); Act of May 13, 2003, 78th Leg., R.S., ch. 182, § 1, 2003 Tex. Gen. Laws 267, 267-595.1


Before the parties finalized the acquisition of Burn II, Sohani and Virani asked Sunesara to file paperwork with the Texas Secretary of State to form three <mask> companies to own and run the three smoke shops. Sunesara completed and filed Certificates of Formation for the LLCs: ZZSS, LLC, which managed Zig Zag Smoke Shop; BRNSS, LLC, which managed Burn I; and EZSS, LLC, which managed Burn II. Each of the Certificates of Formation listed Virani, Sohani, and Sunesara as governing persons of the LLCs. Sunesara testified that he showed each of the certificates to Virani prior to filing, and Virani authorized the filing of the documents. He stated that he did not show the certificates to Sohani but that Sohani had given him authorization to file the certificates. Sunesara's signature is on each of the three certificates, but neither Virani nor Sohani signed the certificates.


Kenneth R. Fisher, J. Two disaffected members of a <mask> company (LLC), plaintiffs Conrad R. Hoffman and George B. Fazekas, move by *180order to show cause for a preliminary injunction enjoining the LLC from making payments of money or other assets owned by it to any LLC member until final determination of this action seeking dissolution. Defendant cross-moves to compel arbitration in accordance with the broad arbitration provision in the LLC’s operating agreement.


7At oral argument, both counsel appeared to agree the <mask> provision does not address or limit equitable remedies. In any event, because we only address OpenTV’s liability for damages, we have no occasion to express an opinion regarding the availability of other remedies, such as equitable relief, under the facts of this case. In any event, the Agreement permits prospective relief for OpenTV’s potential wrongful acts. Section 3.4 mandates OpenTV’s maintenance of complete and accurate records, subject to audit, for determining revenue shares payable to Broadband. There is also nothing precluding Broadband from seeking a declaration of its rights to establish an entitlement to future revenue payments. (Kirkwood v. California State Automobile Assn. Inter-Ins. Bureau (2011) 193 Cal.App.4th 49, 59 [declaratory relief used to “set controversies at rest before obligations are repudiated, rights are invaded or wrongs are committed”].) Indeed, Broadband’s complaint seeks such a declaration regarding OpenTV’s rights and duties to pay Broadband based on revenue OpenTV’s affiliates received from using its software. Hence, construing the limitation of liability provision as capping liability at payments OpenTV actually made does not result in an absurdity. The cases Broadband cites do not alter that conclusion. We similarly reject Broadband’s contention that enforcing the Agreement’s plain language would result in an illusory contract. A contract is “illusory when one of the parties . . . assumes no obligations thereunder . . . [or] provides no legal consideration.” (Harris v. TAP Worldwide, LLC (2016) 248 Cal.App.4th 373, 385.) Consideration is “[a]ny benefit conferred, or agreed to be conferred, upon the promisor, by any other person . . . or any prejudice suffered, or agreed to be suffered, by such person . . . as an inducement to the promisor.” (§ 1605; see San Diego City Firefighters, Local 145 v. Board of Administration etc. (2012) 206 Cal.App.4th 594, 619.) Broadband insists the Agreement lacks consideration because OpenTV has no binding obligation to make any requisite revenue payments. Not so.


“When assessing the adequacy of a complaint in light of a CPLR 3211 (a) (7) motion to dismiss, the court must afford the pleadings a liberal construction, accept the allegations of the complaint as true and provide plaintiff . . . ‘the benefit of every possible favorable inference’ (Leon v Martinez, 84 NY2d 83, 87 [1994] . . . ). ‘Whether a . . . plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss’ (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]). Further, any deficiencies in the complaint may be amplified by supplemental pleadings and other evidence (see Rovello v Orofino Realty Co., 40 NY2d 633, 635-636 [1976]).” (AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 591 [2005].) The initial issue is whether the causes of action assailed by the motion to dismiss are derivative in nature. The Court of Appeals has repeatedly stated that claims are derivative in nature where: “[t]he remedy sought is for wrong done to the corporation; the primary cause of action belongs to the corporation; recovery must enure to the benefit of the corporation” (Isaac v *539Marcus, 258 NY 257, 264 [1932]; Marx v Akers, 88 NY2d 189, 193 [1996]). The parties acknowledge that the determination of whether a claim is direct or derivative turns on who was harmed first, the member or the entity (see generally Kleinberger, Direct Versus Derivative and the Law of <mask> Companies, 58 Baylor L Rev 63 [2006]). Where a member is harmed independent of the entity or is the only member harmed, the claim is direct (id.).


The statute clearly allows the members to enter into an operating agreement wherein the members can agree to certain *436terms, conduct, and provisions for operating the business. However, when there is no operating agreement, or such agreement does not address certain subjects, then the entity is bound by the minimum requirements set forth in the <mask> Company Law. In this situation, the entity is required to operate according to the statutory provisions. These statutory default provisions of the Limited Liability Company Law become the “Operating Agreement” of the limited liability company.


In the petition, petitioners argue that the Board’s decision is arbitrary and capricious and “reflects grave legal errors under both the Election and LLC Laws” (petition ¶ 3). Specifically, petitioners assert that the determination “severely undercuts and undermines the central purpose of the campaign finance scheme by facilitating massive circumvention of the Election Law’s framework of contribution limits and disclosure requirements” (petition 1 100). Petitioners also argue that the Board’s decision ignores and renders null the statutory definition of an LLC set forth in <mask> Company Law § 102 (m) and “fails to consider the fundamental nature of LLCs and how they are treated by other agencies,” namely, as corporations or partnerships (petition f 102). Petitioners seek an order invalidating the Board’s April 2016 decision, rescinding the 1996 Opinion and ordering the Board to issue a new opinion consistent with the text and purpose of the Election Law and Limited Liability Company Law. They also seek a declaration that “the Board’s policy is unlawful, invalid, and unenforceable and null and void ab initio as an ultra vires and illegal action” *380(petition ¶ 111). In opposition, respondent argues, among other things, that petitioners are collaterally estopped from relitigat-ing the issues raised in this proceeding, that petitioners lack standing, that the petition presents a political question which is not justiciable and that the proceeding is barred by the statute of limitations.


Plaintiff alleges that: defendant inappropriately withdrew $300,000 of his capital investment (complaint 1i 17); defendant did so without concern for Fulcrum’s creditors (id. 1Í19) and for no consideration (id. If 20); defendant’s withdrawal rendered Fulcrum insolvent and without assets to satisfy the judgment against it (id. If 21); the three-year limitation periods set forth in New York <mask> Company Law § 508 (c) and the Delaware Limited Liability Company Act (DLLCA) (Del Code Ann tit 6) § 18-607 (c) are inapplicable because defendant did not receive a distribution, but rather, inappropriately withdrew company funds (plaintiffs mem of law at 2); such a withdrawal is a misappropriation of funds rather than a distribution because defendant was not acting in his official capacity as a member of Fulcrum as he did not have authorization for the withdrawal and the monies withdrawn were for personal use (id. at 5-6); and such withdrawal constitutes a fraudulent conveyance subject to a six-year statute of limitations.


Respondents argue that section 407 (a) applies to <mask> Company Law § 1002 (c) no differently than it applies to every other section of the Limited Liability Company Law that contains a meeting requirement. Slayton disagrees, and maintains that mergers are extraordinary and require a meeting before a member can be frozen out. Slayton argues that members should be entitled to face the other members in person to persuade them not to agree to the merger. She, however, cites no case 4 or legal principle in support of this policy-based argument. Respondents, in reply, simply argue that sections 407 (a) and 1002 (c) are unambiguous on their face and should be interpreted as such. (See People v Barden, 117 AD3d 216, 224 [1st Dept 2014]; accord People v Finnegan, 85 NY2d 53, 58 [1995] [“The governing rule of statutory construction is that courts are obliged to interpret a statute to effectuate the intent of the Legislature, and when the statutory ‘language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of (the) words’ ” (quoting People ex rel. Harris v Sullivan, 74 NY2d 305, 309 [1989])]; see Finnegan, 85 NY2d at 58 [“courts are not to legislate under the guise of interpretation”]). No appellate court has addressed this issue.


In view of the plain, clear and unambiguous language of the statute, which creates only a <mask> to protect the rights of the assignee of a life insurance policy to receive the cash surrender value in the event of a lapse of the policy due to nonpayment of premium, it would be an unwarranted extension of legislative action to hold that this same language creates a general duty to give notice of premium default, breach of which would carry with it liability for damages such as plaintiff claims, which by their nature exceed the liability created by the statute.


In re Seneca Investments LLC, 970 A.2d 259 (Del. Ch. 2008). The decision involved a <mask> company, but Section 226(a)(3) applied “because the parties contractually agreed that the LLC would be governed as a corporation and that Delaware General Corporation Law would apply.” Id. at 260 n.1. See Apple Comput., Inc. v. Exponential Tech., 1999 WL 39547, at *1 (Del. Ch. Jan. 21, 1999) (describing the plaintiff’s litigation goals as including an order appointing a custodian “to wind up [the company’s] affairs”); Rosan v. Chi. Milwaukee Corp., 1990 WL 13482, at *5 (Del. Ch. Feb. 6, 1990) (“[Plaintiff] next asks that a custodian be appointed pursuant to 8 Del. C. § 226(a)(3) to effectuate a forced liquidation of [the company].”); Giancarlo v. OG Corp., 1989 WL 72022, at *1 (Del. Ch. June 23, 1989) (“The complaint seeks the appointment of a liquidating custodian for [the corporation] . . . .”). Several orders issued by this court are also consistent with the view that a Section 226(a)(3) custodian can only dissolve, liquidate, or distribute an abandoned corporation’s assets. See Wahl v. Centerville Swimming Club, Inc., 2021 WL 1549805, at *1 (Del. Ch. Apr. 19, 2021) (ORDER) (appointing a custodian “pursuant to 8 Del. C. § 226(a)(3) to wind down, administer claims, and dissolve [the company]”); Camac Fund, LP v. Surety Hldgs. Co., C.A. No. 2019-0541-JTL, Dkt. 19 (Feb. 7, 2020) (ORDER), (appointing receiver under Section 226(a)(3) to “take all actions necessary to wind up the [c]ompany’s operations and dissolve the [c]ompany.”), vacated by Camac Fund, LP v. Sur Hldgs. Corp., 2020 WL 883465 (Del. Ch. Feb. 21, 2020) (ORDER); B.E. Cap. Mgmt. Fund LP v. Fund.com Inc., 2016 WL 6967899, at *1 (Del. Ch. Nov. 29, 2016) (ORDER) (appointing a receiver under Section 226(a)(3); receiver then began liquidating the company before moving to only exception is Klamka, where the petitioner sought to achieve what Synergy wants in


Petitioner, Kimberly Slayton, was (and allegedly still is) a 13.33% member of Old Highline, a New York <mask> company (LLC). On August 7, 2013, Slayton was provided written notice that, pursuant to written consents executed that same day, the holders of 86.67% of Old Highline’s equity (i.e., every other member) adopted a resolution approving a freeze-out merger whereby Old Highline would be merged into a new LLC, New Highline. By virtue of this freeze-out merger, Slayton would be tendered fair value for her equity in Old Highline and would not own any equity in New Highline.


When AON made its investment in Madison, instead of paying defendant, plaintiff caused defendant to execute the July and August 2009 notes under the same conditions noted above and with the understanding that Madison would repay the notes once the investment was finalized. At the time of the AON investment, plaintiff caused a <mask> agreement to be drafted which limited access to the company’s financial records to plaintiff, and gave defendant “non-executive officer” responsibility only for meetings with investors. Notwithstanding his title as “co-chair” of Madison, defendant had no access to Madison’s bank records.


“§ 1505. Professional relationships and liabilities “(a) Each shareholder, employee or agent of a professional service corporation shall be personally and fully liable and accountable for any negligent or wrongful act or misconduct committed by him or by any person under his direct supervision and control while rendering professional services on behalf of such corporation.” (Emphasis added.) State Senator Gioffre, who sponsored this legislation, addressed the <mask> issue by stating: “As applied to professional service corporations, the bill would modify the general rule that shareholders of a corporation do not have personal liability as such for corporate acts and indebtedness; a shareholder of a professional service corporation would be personally responsible for any negligent or wrongful act or misconduct committed by any person under his direct supervision and control, as well as for his own action, while rendering professional services on behalf of such corporation. To ensure that the identity of the persons performing the professional services is disclosed, the bill requires that each plan, report, diagnosis, prescription, record or other document made or issued by a professional service corporation bear the signature of one or more of the *196individual professionals who are in responsible charge of such document.” (NY Legis Ann, 1970, p 130; emphasis added.)


However, we need not decide whether a California court has jurisdiction to dissolve the foreign entities because we conclude that, even assuming it does, the internal affairs doctrine would require it to apply to a dissolution claim the law of the state under which the entity was organized. " 'The internal affairs doctrine is a conflict of laws principle which recognizes that only one State should have the authority to regulate a corporation's internal affairs-matters peculiar to the relationships among or *1067between the corporation and its current officers, directors, and shareholders-because otherwise a corporation could be faced with conflicting demands.' [Citations.] 'States normally look to the State of a business' incorporation for the law that provides the relevant corporate governance general standard of care.' " ( State Farm Mutual Automobile Ins. Co. v. Superior Court (2003) 114 Cal.App.4th 434, 442, 8 Cal.Rptr.3d 56.) As stated in the Restatement Second of Conflict of Laws: "The local law of the state of incorporation will be applied to determine the right of a shareholder to participate in the administration of the affairs of the corporation, in the division of profits and in the distribution of assets on dissolution and his rights on the issuance of new shares, except in the unusual case where, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the shareholder and the corporation, in which event the local law of the other state will be applied." (Rest. 2d of Conflict of Laws, § 304, italics added.) The internal affairs doctrine applies to foreign limited partnerships (§ 15909.01) and foreign <mask> companies (§ 17708.01; see former § 17450, subd. (a) ).


“Unless otherwise agreed, a member who receives a distribution from a <mask> company shall have no liability under this chapter or other applicable law for the amount of the distribution after the expiration of 3 years from the date of the distribution unless an action to recover the distribution from such member is commenced prior to the expiration of the said 3-year period and an adjudication of liability against such member is made in the said action.” The three-year time limitation imposed by section 508 (c) overrides the limitation period applicable to any claim brought under the Debtor and Creditor Law with regard to distributions made by a limited liability company to a member. (In re Die Fliedermaus LLC, 323 BR 101, 108 [SD NY 2005] [“(I)t was the intent of the New York Legislature that claims under the DCL and contractual claims for the recovery of distributions be preserved, but only as limited by § 508 (c)”]; Williamson v Culbro Corp. Pension Fund, 41 AD3d 229 [1st Dept 2007], lv denied 10 NY3d 702 [2008] [holding the nearly identical statute of limitations governing limited partnerships (Partnership Law § 121-607) was intended to override the limitations statutes of all other applicable law, including that applicable to a claim of unjust enrichment].)*


“A Manager shall not be personally liable to the Company or its Members for damages for any breach of duty as a Manager, except for any matter in respect to which such Manager shall be liable by reason that, in addition to any and all other requirements for such liability, there shall have been a judgment or other final adjudication adverse to such Manager that establishes that such Manager’s acts or omissions were in bad faith or involved intentional misconduct or a knowing violation of law or that such Manager personally gained in fact a financial profit or other advantage to which such Manager was not legally entitled or that with respect to a distribution the subject of Section 508 of the [<mask> Company Law], such Manager’s acts were not performed in accordance with Section 409 of the [Limited Liability Company Law].” Limited Liability Company Law § 508 refers to limitations on distributions to members. Limited Liability Company Law § 409 (a) provides that “[a] manager shall perform his or her duties as a manager, including his or her duties as a member of any class of managers, in good faith and with that degree of care that an ordinarily prudent person in a like position would use under similar circumstances.”


Instead, the State attempted to rely on the common-law principle allowing for a corporate officer to be held individually liable when he "knowingly participates in tortious or fraudulent acts ... even though he performed the act as an agent of the corporation."3 See Nwokedi v. Unlimited Restoration Specialists, Inc., 428 S.W.3d 191, 201, 210 (Tex.App.-Houston [1st Dist.] 2014, pet. denied) (upholding individual liability for person who owned controlling interest in company where evidence showed that he participated in company's fraud by engaging in contract negotiations, informing representative which contract terms to modify, telling other company that it would be receiving checks from Travelers, and instructing Travelers to not issue check to other company); see also Leyendecker & Assocs., Inc. v. Wechter, 683 S.W.2d 369, 375 (Tex. 1984) (rejecting argument that employee cannot be held liable for tort committed in scope of employment and explaining that "[a] corporation's employee is personally liable for tortious acts which he directs or participates in during his employment"); Physio GP, Inc. v. Naifeh, 306 S.W.3d 886, 889 (Tex.App.-Houston [14th Dist.] 2010, no pet.) (providing that "[t]he purpose of individual liability in the corporate setting is to prevent an individual from using the corporate structure or agency law as a blanket to insulate himself from liability for his otherwise tortious conduct"); Sanchez, 274 S.W.3d at 712 (explaining that "the corporate veil is not required to be pierced" "to hold an agent individually liable for his tortious or fraudulent acts," distinguishing issue of individual liability from that of *338liability under alter ego, and stating that trial court erred by rendering summary judgment in favor of employee on non-contract claims on ground that plaintiffs were required to pierce corporate veil); Dixon v. State, 808 S.W.2d 721, 723-24 (Tex.App.-Austin 1991, writ dism'd w.o.j.) (affirming individual liability where corporate officer committed tort of conversion). Specifically, the State acknowledged that the structure of a <mask> company "is intended to shield its members from the liabilities and obligations of the company,"see Tex. Bus. Orgs.Code § 101.114, but the State urged that the "statutory shield does not deflect the liability" for the conduct at issue and was "not required to be pierced."


CHARLES LAM, INDIVIDUALLY AND No. 83908 DERIVATIVELY ON BEHALF OF TRAN ENTERPRISES, LLC, A NEVADA <mask> COMPANY, AND AS TRUSTEE OF THE NT FILE REVOCABLE LIVING TRUST DATED THE 15TH OF OCTOBER 2009, Appellant, vs. P. STERLING KERR, INDIVIDUALLY AND AS TRUSTEE OF THE NT LEGACY TRUST, DATED THE 15TH DAY OF OCTOBER 2009; NHU TRAN FOUNDATION, INC., A NEVADA NON- PROFIT CORPORATION; AND COURT APPOINTED RECEIVER, ROBERT ANSARA OF DUNHAM TRUST COMPANY, Respondents.


Lighthouse, as a <mask> company, is governed by the Limited Liability Company Law for its operation, conduct, duties, powers, and rights of its members. Throughout this statute the sections state: “except as provided in the operating agreement” or “if the operating agreement does not so provide” or “unless otherwise provided in an operating agreement” (see Limited Liability Company Law §§ 401-704). These specific sections set forth default provisions governing limited liability companies. These default provisions establish the statutory terms imposed on a limited liability company for the operation of the business, the conduct of its affairs, and the rights, powers, and responsibilities of it members (id,.).


“(a) Subject to the provisions of this chapter, the members of a <mask> company shall adopt a written operating agreement that contains any provisions not inconsistent with law or its articles of organization relating to [i] the business of the limited liability company, [ii] the conduct of its affairs and [iii] the rights, powers, preferences, limitations or responsibilities of its members, managers, employees or agents, as the case may be.” (Limited Liability Company Law § 417 [a].) In the event that there is not a formal written “Operating Agreement” of the company, or such agreement does not address certain business matters, then there are numerous sections in the statute that set forth default provisions applicable to the limited liability company (see Limited Liability Company Law §§ 401-704).


“The LLC was designed as a hybrid of the corporate and limited partnership forms, offering the tax benefits and operating flexibility of a limited partnership with the <mask> protection of a corporation. See Weber v. King, 110 F. Supp. 2d 124, 131 (E.D.N.Y. 2000); see also N.Y. Practice § 1:2 (explaining that the NYLLCL drew upon the N.Y. Revised Limited Partnership Act and N.Y. Business Corporation Law)” (Bischoff v Boar’s Head Provisions Co., Inc., 436 F Supp 2d 626, 630 [SD NY 2006]). Significantly, a limited liability company is “an unincorporated organization of one or more persons having limited liability for the contractual obligations and other liabilities of the business” *160(Limited Liability Company Law § 102 [m] [emphasis added]). A limited liability company is more akin to a partnership (see Partnership Law §§ 2, 10) since both entities are “combination[s] of individuals, who can suffer injuries and do have spouses, households and relatives” (Buckner v Motor Veh. Acc. Indem. Corp. at 214). Notably, in Matter of Aetna Cas. & Sur. Co. v Mantovani (240 AD2d 566 [1997], lv denied 90 NY2d 810 [1997]), an arbitration award in favor of a partner for underinsured motorist benefits under a business automobile policy issued to the partnership was upheld.


In July 2008, Erik Ortega purchased assets from the bankruptcy estates of his parents, Jose Ortega (Case No. 06-03848-LA11) and Martha Elba Ortega (Case No. 06-03849-LA11). He bought 11 vehicles with a red color scheme labeled Border Cab, and 14 vehicles with a white color scheme labeled Calexico Taxi. From the mid-1980's to 2008, Jose Ortega was the sole proprietor and owner of Border Cab, and Martha Ortega was the sole proprietor and owner of Calexico Taxi. On January 1, 2009, Erik formed BTG as a <mask> corporation and employed Martha.4


It should be construed in the spirit with which it was framed. To invite capital, it offers the inducement of a <mask> on the part of the investor. And while its provisions should be rigorously invoked and applied in behalf of one who suffers by their violation, a wise discrimination should be exercised in their application to one who seeks to obtain an undue advantage thereby.


BACKGROUND The Parties, the Participants, and the General Setting This appeal is by Matthew Sirott, M.D. and Robert Robles, M.D., derivatively on behalf of California Radiation Treatment Center, LLC (CRTC), (when referred to collectively, appellants). CRTC is a <mask> company that was founded in 2008 for the purpose of acquiring and operating radiation therapy equipment for lease to medical groups practicing medical and radiation oncology. It has an operating agreement that expires in 2028. CRTC has three members: Sirott, who owns 25 percent; Robles, who owns 25 percent;1 and East Bay Medical Oncology-Hematology Medical Associates, Inc. (usually Epic), which owns 50 percent. Sirott and Robles are also associated with a medical group known as Diablo Valley Oncology and Hematology Medical Group, Inc. (DVO). The managers of CRTC are Sirott and Bimal Patel, M.D., the latter of whom is President and CEO of Epic. CRTC leases a portion of the building at 400 Taylor Boulevard, Pleasant Hill. The building is owned by 400 Taylor Holdings, LLC, which in turn is owned by Sirott (25 percent), Robles (25 percent), and EBO Properties North, LLC (50 percent). The managers of 400 Taylor Holdings, LLC are Patel and Sirott. Patel is also the manager of EBO Properties North, LLC. CRTC owns radiation therapy equipment, specifically two Elekta Synergy linear accelerators (Linacs) that are installed in concrete vaults in the building at 400 Taylor Boulevard. The Epic physicians and the DVO physicians both use the CRTC facilities in treating their respective patients, subleasing the facilities for such use. Epic and DVO doctors bill and collect


In Chiu , the Supreme Court held that a defendant cannot be found guilty of first degree murder under the natural and probable consequences theory of accomplice liability. ( Chiu , supra , 59 Cal.4th p. 166, 172 Cal.Rptr.3d 438, 325 P.3d 972.) However, the Supreme Court did not hold that an aider or abettor could never be convicted of murder; it simply <mask> for first degree premeditated murder to offenders whose convictions were based on direct aiding and abetting principles. ( Ibid. ) As for aiders and abettors convicted under the natural and probable consequences theory, the Court held that punishment for second degree murder is commensurate with a defendant's culpability for aiding and abetting a target crime that would naturally, probably, and foreseeably result in a murder. ( Ibid. )


Merchants relies on case law holding that a business automobile policy issued to a corporation does not provide uninsured motorist coverage to a family member of the sole shareholders of the corporation (Buckner v Motor Veh. Acc. Indem. Corp., 66 NY2d 211 [1985]; Gallaher v Republic Franklin Ins. Co., 70 AD3d 1359 [2010]; Siragusa v Granite State Ins. Co., 65 AD3d 1216 [2009]). This rule does not apply to <mask> companies to the extent that its members are “natural persons.”


*696CPLR 1603, entitled "Burdens of proof’, is also relevant to the issues here. It requires any person wishing to avoid the application of CPLR article 16, usually the plaintiff, to establish one or more of the exemptions enumerated in CPLR 1602 by a preponderance of the evidence. More importantly, a party seeking <mask> pursuant to CPLR article 16 has the burden of proving, also by a preponderance of the evidence, "its equitable share of the total liability”. In light of this burden of proof, the Appellate Division, Fourth Department, in the only appellate decision to address the questions at issue here, held that a party asserting CPLR article 16 as an affirmative defense must provide a responsive bill of particulars when served with a proper demand (see, Ryan v Beavers, 170 AD2d 1045, 1046). For the reasons that follow, I agree with the holding of the Fourth Department in Ryan.


*789“formed for the purpose of engaging in any lawful act or activity for which <mask> companies may be formed under the [Limited Liability Company Law] and engaging in any and all activities necessary or incidental to the foregoing, including the ownership, management, leasing, [and] renting ... of [the] 363-367 Neptune Avenue [property].” 363-367 Neptune Avenue, LLC also contends it is entitled to sell and vacate the premises pursuant to the Operating Agreement. 363-367 Neptune Avenue, LLC relies upon article XI, paragraph 11.2 of the Operating Agreement, entitled “Winding Up,” which provides that “upon the dissolution of the Company the Manager(s) may, in the name of and for and on behalf of the Company . . . dispose of and convey the Company’s property, discharge the Company’s liabilities and distribute to the Members any remaining assets of the Company.” 363-367 Neptune Avenue, LLC further points to article III, paragraph 3.4 of the Operating Agreement, which provides that “[t]he Manager, with the prior written approval of a Majority Vote of all Members, shall have the right, to approve the leasing, renting, sale, change of use, ... or other disposition of all or part of the Real Property.”


According to section 702 of the <mask> Company Law, judicial dissolution of a limited liability company is only warranted when “it is not reasonably practicable to carry on the business in conformity with the articles of organization or operating agreement.” While this standard has never been construed in the case law, the court interprets it to mean that judicial dissolution will be ordered only where the complaining member can show that the business sought to be dissolved is unable to function as intended, or else that it is failing financially. Schindler has nowhere so much as alleged that Niche is unable to carry on its business in accordance with its articles of organization or operating agreement, or that there is any internal “deadlock” impeding its smooth operation. In addition, the court has examined Niche’s financial statement in camera, and it shows — as even Schindler admits — that Niche publishes *717three very successful magazines and is quite profitable.2 Niche and Hamptons, which Niche owns, are therefore flourishing, and both are being conducted in conformity with their articles of organization.3


Since Tzolis, the Appellate Division has not addressed whether limitations on suing a <mask> company derivatively include a contemporaneous ownership requirement and/or the requirement for a demand upon the company. The court has discovered two trial court decisions of note on these issues. In Davis v Cornerstone Tel. Co., LLC (19 Misc 3d 1142[A], 2008 NY Slip Op 51141[U] [2008]), Justice Richard M. Platkin, the Presiding Justice of the Commercial Division in Albany County, concluded as follows: “In any event, standing to pursue a derivative claim on behalf of a corporation requires status as a shareholder, and standing to pursue a derivative claim on behalf of a limited liability company requires status as *541a member (Tzolis v Wolff, 10 NY3d 100 [2008]).” (2008 NY Slip Op 51141[U], *11).


This case involves conflicting claims concerning a right of first refusal set forth in various deeds. Despite the fact that the plaintiffs agreed to the restriction in two deeds that granted a right of first refusal to each of the defendants, and thereafter expressly reaffirmed' that right by placing same in a quitclaim deed when transferring the property to a <mask> corporation, and after participating in a celebrity-studded publicity campaign to induce the defendants into waiving that right of first refusal, plaintiffs now assert that the right of first refusal held by the three answering defendants is contrary to the “stranger to the deed” rule and should be declared void and unenforceable. That single assertion, which is before the court, is apparently one of first impression.


A corporate shareholder or member in a <mask> company may bring a derivative lawsuit on the company's behalf when the insiders who control the company refuse to do so. The shareholder or member bringing the derivative lawsuit is the plaintiff in name only because the lawsuit seeks redress for injury the company suffered and any recovery belongs to the company. Hence, although the company is named as a nominal defendant based on the insiders' refusal to bring the lawsuit on the company's behalf, the company is the true plaintiff. ( Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1003-1004, 84 Cal.Rptr.3d 642 ; see Blue Water Sunset, LLC v. Markowitz (2011) 192 Cal.App.4th 477, 489, 122 Cal.Rptr.3d 641 ( Blue Water ) [applying corporate derivative action principles to limited liability company].)


Five years after Reynolds , in Martinez , supra , 49 Cal.4th 35, 109 Cal.Rptr.3d 514, 231 P.3d 259, our Supreme Court revisited the issue of how to determine the responsible party for unpaid wages under section 1194. ( Martinez , at p. 42, 109 Cal.Rptr.3d 514, 231 P.3d 259.) The court again <mask> for section 1194 wage claims to the actual employer (not the employer's agent)-this time basing the decision on court deference to the IWC's interpretation of one of its own wage orders, No. 14-2001: Because "an employee who sues to recover unpaid ... wages under section 1194 actually sues to enforce the applicable [IWC] wage order[,]" courts should defer *476to the commission's wage orders' definition of "employer." ( Martinez , at p. 62, 109 Cal.Rptr.3d 514, 231 P.3d 259.) In Martinez , the court first acknowledged that, in Reynolds it had "looked to the common law rather than the applicable wage order to define employment in an action under section 1194 seeking to hold a corporation's directors and officers personally liable for its employees' unpaid overtime compensation." ( Martinez , at p. 62, 109 Cal.Rptr.3d 514, 231 P.3d 259.) The court then disapproved of its prior ruling, concluding that the applicable wage order, not the common law, "properly defines the employment relationship ... under section 1194." ( Martinez , at p. 62, 109 Cal.Rptr.3d 514, 231 P.3d 259 ; see id . at p. 50, fn. 12, 109 Cal.Rptr.3d 514, 231 P.3d 259 [ Reynolds "spoke too broadly in concluding that the common law defines the employment relationship in actions under section 1194"].)


We construe these sections as requiring a <mask> company to include a statement of the amount of cash contributions made by each member and a statement of the agreed value of any other contribution made by each member in the written records of the company and that these records establish the allocation of a member's share of the profits and losses of the company. Because Sunesara did not introduce any records of the LLCs reflecting the contributions that he made to the LLCs, we conclude that he has presented no evidence that he is entitled to one-third of the profits of the LLCs under section 101.201.


It must be conceded by all concerned that in effect, the Pivot Punch and Die Corporation is a close corporation and, being a close corporation, it is simply a partnership consisting of Mr. Kopczynski and Mr. King, clothed with the benefits peculiar *716to a corporation, <mask>, perpetuity and the like. It would be mere prolixity to substantiate such a conclusion by quoting decisions in this and other States. The United States Government, in its Technical Amendment Act of 1958 has acknowledged the kinship of a close corporation vis-á-vis a partnership by permitting, in a situation such as before this court, the stockholders to file and pay income taxes as though they were in fact partners. Obviously, the United States has concluded that a close corporation is in effect a partnership.


Burns requests that his motion “serve as a cross claim” against 2784 LLC for his legal fees and indemnification *296pursuant to article 4.7 of the operating agreement. Such a request is procedurally improper. Burns has not yet interposed an answer to plaintiffs’ second amended complaint nor did he include a cross claim against 2784 LLC for indemnification in his answer to plaintiffs’ first amended complaint. Moreover, there has been no final adjudication on the issue of whether Burns breached his duties under the operating agreement, and such a finding would defeat his claim for indemnification pursuant to <mask> Company Law § 420, which provides as follows:


Inferentially however, the court did criticize the un<mask> imposed on the municipality in that case, and it would seem to be preferable to treat the town on a par with a private litigant in a like situation, by fixing an upper limit of liability so that the exemption created by section 162 of the Civil Practice Act does not become an intolerable burden.


“In view of the provisions of the ATC Sales Agency Agreement, the court distinctly feels that defendant [airline] was most willing to accept all of the benefits under the agreement, including the promotion and sale of its transportation facilities, but was unwilling to accept any possible disadvantages which might arise. It called the travel agent under the agreement its agent; it clothed the agent with authority to issue tickets on its behalf, and made the agent its depository for the proceeds of ticket sales. It held itself out, for all intents and purposes, as the principal with whom the unwary customer was actually dealing. It cannot now retire behind a curtain of <mask> on the theory that one, such as Dallys [travel agency], was its own independent contractor and *888broker serving the interests only of itself and its customers when, in fact, such agent was serving the primary interests of the carrier involved.” (Rappa, 87 Misc 2d at 763.) The court denied the airline’s motion to dismiss the passenger’s complaint and, on its own motion pursuant to CPLR 3212, entered summary judgment in favor of the passenger.


The basis for the claim that the policies are void is that “the New York LLCs do not engage in the practice of medicine” and that pursuant to New York law “<mask> companies are prohibited from engaging in the practice of medicine” (complaint KK 7, 8). The complaint alleges that although Sagemark submitted applications which state that the Long Island and Queens LLCs provide “management and administrative” services, Arch purported to issue “a medical malpractice insurance policy.”


The summons and complaint lists the plaintiffs residence as 8875 Aero Drive, Suite 200, San Diego, California and the complaint alleges that the plaintiff is a “foreign entity.” These facts would permit the complaint to be verified by an attorney as was done here (CPLR 3020 [d] [3]). Interestingly a search of the Department of State, Division of Corporations’ records lists seven entities registered in New York containing the name “Midland Funding” including both Midland Funding LLC and Midland Funding of Delaware LLC, the two entities mentioned in this summons and complaint. The Division of Corporations’ records shows both of these entities as an “Active,” “Foreign <mask> Company” formed in “Delaware.” Both names were filed with the Department of State on the same date, January 22, 2008. The Web site maintained by the California Secretary of State discloses only “Midland Funding LLC” as an active entity. Its address is the one recited in the pleadings for the plaintiff.


The clause that the company shall not be liable for any' loss or damage of any box, package, or thing, for over fifty dollars, unless the just and true value thereof is stated in the receipt, cannot, by any just construction of the whole instrument, be made to work by the mere neglect of the shipper to declare the value a <mask> On the part of the company when no liability outside of it exists. Until a liability is actually incurred the limitation clause remains a mere dormant stipulation.


The facts established in this case do not support the defendant’s allegation that the entity is fraudulently formed as outlined in Mallela {supra). However, neither the plaintiff nor Dr. Braver offer any rationale for failing to adhere to the requirements of the <mask> Company Law. Dr. Braver raises, through an affidavit in opposition, that he is being persecuted by the insurance companies, but fails to offer any other defense to the defendant’s allegation of fraudulent formation. Dr. Braver had the opportunity to avail himself voluntarily of options to continue the entity through a valid transfer but failed to do so. Therefore, the plaintiff, while properly formed, in light of the suspension of its sole member is now required to dissolve and wind up its affairs. As such, it does not have standing to the continued maintenance of this action.


A member may not institute or maintain a derivative proceeding unless: (1) the member: (A) was a member of the <mask> company at the time of the act or omission complained of; or (B) became a member by operation of law from a person that was a member at the time of the act or omission complained of; and (2) the member fairly and adequately represents the interests of the limited liability company in enforcing the right of the limited liability company.20 The Texas Supreme Court has described the analogous provision governing shareholder-derivative suits as "statutory standing."21 Subsection (1) of the provision codifies or incorporates the so-called "contemporaneous ownership" requirement,22 which seeks to prevent subsequent *349purchasers of interests in an entity from speculating in litigation and purchasing grievances in order to sue the entity's governing body or officers.23


Section 101 of the Domestic Relations Court Act, subdivision 4 of which is above quoted in full, consists of five subdivisions, together defining the support obligations of the several classes of legally chargeable respondents. Subdivision 1 deals with the *996liability of a husband for support of his wife and children; subdivision 2 deals with the liability of a mother for the support of her child if the father is dead or incapable of supporting it or cannot be found within the State; subdivision 3 defines the secondary liability of the grandparents of a grandchild under the age of seventeen years; subdivision 4, above quoted, deals with the liability of children, among other relatives, of a dependent adult who is a resident of the city of New York, unable to maintain himself and likely to become a public charge; and subdivision 5 deals with the <mask> of a stepparent.


There is complete diversity because SDM and Drexel are not citizens of the same state. As a <mask> corporation, SDM takes on the citizenship of its members and submembers. See Zambelli Fireworks Mfg. Co. v. Wood, 592 F.3d 412, 420 (3d Cir. 2010) (explaining that determining an LLC’s citizenship requires drilling down “through however many layers of partners or members there may be” to evaluate the citizenship of each (internal quotation marks omitted)); cf. Lincoln Benefit Life Co. v. AEI Life, LLC, 800 F.3d 99, 111 (Ambro, J., concurring) (“There is no good reason to treat LLCs differently from corporations for diversity-of-citizenship purposes.”). Accounting for those members and submembers, SDM is a citizen of Delaware, Maryland, and California for purposes of the diversity statute.1 As a non-profit corporation, Drexel has citizenship for purposes of the diversity statute in the state of its incorporation and in the state of its principal place of business – Pennsylvania in both instances. See 28 U.S.C. § 1332(c)(1); see also Zambelli, 592 F.3d at 419. Without any overlap in the citizenship of SDM and Drexel, the complete diversity requirement is satisfied.


The court believes that respondents are correct. Section 1002 (c) does not contain any language providing that the required meeting comes with greater attendant rights than any other meeting required by the <mask> Company Law. Therefore, section 407 (a) necessarily applies to meetings under section 1002 (c). Ergo, an LLC may enter into a merger agreement without a meeting if the requisite written consents are procured, as they were in this case.


The Workmen’s Compensation Law imposes an absolute and <mask> upon an employer to make compensation payments to an injured employee, or in case of death, to dependents. It is no longer necessary to say, as a conciliatory phrase toward the acceptance of the principle of industrial compensation, that absolute liability is in lieu of liability, unlimited in amount under common-law principles of negligence. (Arizona Employers’ Liability Cases, 250 U. S. 400; New York Central R. R. Co. v. White, 243 U. S. 188.) The statute fixes the amount of compensation to be paid, and neither employer nor employee-can deviate from the statutory provisions. No agreement to vary those provisions as between the two is valid; and the employer cannot in any way relieve himself from his obligation to make full payments. (Workmen’s Compensation Law, §§ 31, 32; Matter of Cretella v. New York Dock Co., 289 N. Y. 254; Matter of Renzo v. Reid Ice Cream Corp., 279 N. Y. 83; Surace v. Danna, 248 N. Y. 18.) The employer may, to be sure, find that he is not called upon to make these payments, either wholly or partially, by the fortuitous circumstance that injury to or death of an employee resulted from the negligence of a third person. In such a case he is not automatically relieved of his liability; that persists, and he merely benefits by the amount recovered against the third person by judgment or settlement, paying only the difference between that amount and the amount that would otherwise be payable by way of compensa*766tion; nothing, if there is no difference. Other than this the employer has no concern with the third party action and no interest in it except, of course, that where that action is settled by voluntary arrangement between employee and third party, he cannot be held to any deficiency unless he has consented to the settlement. (O’Brien v. Lodi, supra; cf. Matter of Gallagher v. Carol Constr. Co., 272 N. Y. 127.) This requirement is to prevent imprudent settlements to the prejudice of the employer, to assure satisfactory settlement agreements and thereby minimize the amount of the deficiency. “ This provision of section 29 [requiring the employer’s consent] is to protect the insurer as to the amount of the deficiency; it has no other purpose.” (O’Brien v. Lodi, 246 N. Y. 46, 51, supra.)


Although the parties essentially concede that there is no authority directly addressing the appealability issue before us here, Ontiveros urges this court to follow Dickson v. Rehmke (2008) 164 Cal.App.4th 469, 78 Cal.Rptr.3d 874 ( Dickson ). Dickson involved a motion under the former section 17351 for *269buyout of another member's interest in a <mask> company.6 ( Dickson, supra, at p. 473, 78 Cal.Rptr.3d 874.) The trial court issued an alternative decree and the purchasing member made prompt payment per the decree, and the court entered judgment accordingly. The moving member appealed from the judgment, contending the trial court erred in valuing his interest in the company. ( Id . at p. 473, 78 Cal.Rptr.3d 874.) The purchasing member moved to dismiss the appeal on the ground that the notice of appeal was not timely filed after entry of the alternative decree. The appellate court agreed, holding that the appeal should have been taken from the alternative decree and dismissed the appeal. ( Ibid . )


Section 101.201 provides, "The profits and losses of a <mask> company shall be allocated to each member of the company on the basis of the agreed value of the contributions made by each member, as stated in the company's records required under Section 101.501. " Id. § 101.201 (West 2012) (emphasis added); id. § 101.203 (West 2012) ("Distributions of cash and other assets of a limited liability company shall be made to each member of the company according to the agreed value of the member's contribution to the company as stated in the company's records required under Sections 3.151 and 101.501.") (emphasis added). Section 3.151(a) provides that each filing entity, including limited liability companies, shall keep "books and records of accounts," "minutes of the proceedings of the owners or members," "a current record of the name and mailing address of each owner or member of the filing entity," and "other books and records as required by the title of [the Business Organizations Code] governing the entity." Id. § 3.151(a) (West 2012).


A <mask> company may serve as trustee in a deed of trust. See § 443.350.7 The role of the trustee is to attend the foreclosure sale and supervise its completion. See Citizens Bank of Edina v. W. Quincy Auto Auction, Inc. , 742 S.W.2d 161, 162-63 (Mo. banc 1987) (citing Bogert, The Law of Trusts and Trustees § 556 (rev. 1980) ); see also Petring v. Kuhs , 350 Mo. 1197, 171 S.W.2d 635, 637 (1943) ("While the trustee need not actually cry the sale the rule in this state is that the trustee must be present during the crying of the sale, to observe the progress thereof, protect the interests of the parties concerned, to reject fraudulent bids made to frustrate the sale, and, if necessary, to adjourn the sale."). Because a limited liability company must act through agents, Sutherland , 348 S.W.3d at 92, when such an entity acts as trustee, an authorized individual of the limited liability company must attend the foreclosure sale and supervise its completion.