09/17/2012 4:48PM

New York judge rejects motion to dismiss lawsuit against Thoroughbred Retirement Foundation

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A New York state Supreme Court justice has denied the Thoroughbred Retirement Foundation’s motion to dismiss a lawsuit the state’s attorney general filed against the nation’s largest charity for ex-racehorses.

New York Attorney General Eric Schneiderman has sued TRF, alleging the group’s directors violated their fiduciary duties and allowed a number of the estimated 1,000 horses in its care to become neglected. The TRF has vigorously denied those allegations. Schneiderman seeks, among other things, removal of the TRF board.

In a motion filed Monday, state Supreme Court Justice Anil Singh wrote that the TRF had not “carried their burden of showing that the NYAG has failed to state a cause of action. . . . The defendants have not addressed the right of the NYAG to bring any of these claims, but instead call upon the court to dismiss the action based upon the credibility of their witnesses.”

Singh rejected the TRF’s attempts to have the case dismissed based on the documentary evidence the TRF provided and for failure to state a cause of action upon which relief can be granted. The TRF had argued that Schneiderman’s case should be dismissed because it was, they alleged, based on falsehoods and distortions that directly contradicted such documentary evidence as the TRF horses’ recent evaluations by veterinarians. The charity also invoked the business judgment rule, alleging that the attorney general had not “alleged or proven bad faith or self-dealing on the part of the individuals, and as such, the business judgment rule protects the decisions of the board and the individuals.”

But Singh called the TRF’s argument invoking protection under the business judgment rule “misguided” in his refusal to dismiss the case. He also referred to TRF’s “oblique reference” to the statutes cited in Schneiderman’s case as “clearly erroneous” in the TRF’s assertion that the attorney general had not alleged a lack of good faith as required under the statute regarding violation of duties of care and loyalty by corporate directors. Singh said that Schneiderman’s complaint “is replete with such allegations.”

“Justice Singh recognized the substantiality of the defenses the TRF has to the NYAG complaint, but concluded that he couldn’t dismiss the NYAG’s complaint because on a motion to dismiss the court has to accept the allegations of the complaint, even if those allegations turn out to be utterly false as is the case here,” TRF attorney Barry Ostrager said in an e-mailed statement Monday afternoon. “The TRF is reviewing the decision to determine whether to appeal.”

Singh’s order directs attorneys for both sides to appear for conference at 9:30 a.m. Nov. 7.