I do not believe the complaint should be dismissed or that summary judgment should be awarded the defendant.
We do not have a mere sale of stock in the simplistic way that the majority views the transaction in suit. From the pleadings, the affidavits and the examinations a darker and far more complicated situation emerges. The protagonist, the defendant Kaplan, came into General Refractories, a publicly held corporation, at the behest of Susquehanna and was an erstwhile companion-in-arms of Mr. Korholz, chairman of the Susquehanna board. Indeed, it was feared that as allies they would attempt to take over General. However, the defendant putting together information derived from Susquehanna, an insider, and from his own brother-in-law, a partner in Lehman Brothers, a Great Lakes agent, the defendant switched his allegiance and became party to the Great Lakes sale, making a profit of $532,875. In my view, the defendant’s deft use of this information, to which he was privy only because of the unique corporate position he enjoyed, information well beyond the ken of his fellow stockholders, certainly beyond the public domain, in one stroke resulted in a premium of over half a million dollars. The information was crucial, that Great Lakes was willing to pay him a half million dollars above the market price of his stock to assure Great Lakes of enough reserve to put over the deal with General. It is at least an arguable question worthy of the trial process, that the defendant, because of the unusuality of his corporate relationship, to his own instant profit, made use of material and significant information of an extraordinary character but not available to his fellow stockholders or to the general public.
Since the disposition of Special Term (December 22, 1967), the law in this area has moved on apace. (See Diamond v. Oreamuno, 29 A D 2d 285 [Feb. 20,1968] and Securities & Exch. Comm. v. Texas Gulf Sulphur Co., 401 F. 2d 833 [2d Cir., Aug. 13, 1968].) Believing, as I do, that the instant case is within the penumbra of both the Diamond and Texas Gulf decisions, the plaintiff is entitled to a plenary consideration of his case. There certainly is here present a doubt and an issue large enough to prevent summary judgment. (Sillman v. Twentieth Century-Fox, 3 NY 2d 395, 404.)
As for the complaint, it is thin, a sort of a “ bare bones ” complaint. But it will do. It puts the defendant on notice that the transaction is under fire, it is challenged. And, on the enlarged record before us, the defendant cannot possibly be prejudiced or misled either as to identity of the transaction or the occurrences sought to be litigated. (Foley v. D’Agostino, 21 A D 2d *10160; Lane v. Mercury Record Corp., 21 A D 2d 602; Moller v. Board of Educ. of the City of Albany, 30 A D 2d 998.)
Accordingly, in my view, the Special Term orders were correct in both instances, the refusal to dismiss, the refusal to grant summary judgment, and both orders should be affirmed.
Stevens, J. P., Eager and Capozzoli, JJ., concur with Rabin, J.; McGtvern, J., dissents in opinion.
Order entered on April 5,1968, reversed, on the law, with $50 costs and disbursements to appellant, and defendant’s motion for summary judgment dismissing the complaint granted, with $10 costs, without prejudice to plaintiff proceeding on any different cause of action as he may be advised, and the Clerk directed to enter judgment in favor of defendant-appellant dismissing the complaint, with costs.
Appeal from order entered on December 26, 1967, becomes academic in view of the decision on the appeal from the order entered April 5, 1968 and dismissed without costs or disbursements.