OPINION OF THE COURT
Mollen, P. J.The complaint alleges that plaintiff was a minority stockholder of defendant Arkwin Industries, Inc. (Arkwin). Defendant Berlin, the founder, president and board chairman of Arkwin, was the majority stockholder, owning 85% of all issued and outstanding shares. In 1978 and 1979, Arkwin, a producer of material for use in the defense industry, realized increased sales and profits, and as of April 30, 1979, had a backlog of firm offers worth $35,000,000. At the same time, the corporation showed signs of increased profitability for the immediate future. Nevertheless, defendants deliberately refrained from declaring any dividends and announced that none would be declared in the future. It is alleged that this action depressed the market value of Arkwin’s stock.
*150On December 3, 1980, an agreement was entered into providing for the merger of Arkwin and Newark Properties Corporation (Newark) of which Berlin was the sole owner. Pursuant to the agreement, Arkwin was to be wholly owned by Berlin, and all other holders of Arkwin’s common shares would receive a cash payment of $7 per share. By notice dated December 3, 1980, a special meeting of Arkwin shareholders was called. The stated purpose of the meeting, which was scheduled for December 23,1980, was to approve the merger agreement. To that end, a proxy statement and a copy of the agreement were attached to the notice of the meeting. The proxy statement informed shareholders that Berlin had a sufficient number of votes to effect approval of the merger without the affirmative vote of any other shareholder and that he intended to vote in favor of the merger. The proxy statement also informed shareholders that Berlin would own all the outstanding shares of the surviving corporation, and asserted that Berlin’s sole ownership would benefit the corporation in two ways: It would dispense with the requirements of the Federal securities law that shareholders be apprised of information which, when made public, tended to place the corporation in a disadvantageous position with respect to competitors, and it would save the costs attendant to conducting business as a public corporation. The proxy statement further advised that the book value of Arkwin as of July 31, 1980, was $10.64 per share. This price allegedly did not reflect the value of the $35,000,000 backlog of firm orders, the fair market value of depreciated equipment and property owned by Arkwin or its prospects for future profits and growth. The proxy statement also asserted that, notwithstanding a report by a research group engaged by Arkwin that the $7 per share offered minority shareholders could not be certified as fair, Arkwin intended to offer that price based on its own determination to the contrary. The offer would be made even though Arkwin admitted in the proxy statement that the terms of the merger and the $7 per share to be paid public shareholders were not based on an arm’s length negotiation.
*151Additionally, the proxy statement set forth the rights of shareholders who objected to the agreement and proposed merger. Notice was given that they, as dissenting shareholders, could avail themselves of the judicial appraisal procedure for determining the fair value of their shares by complying with the requirements of section 623 of the Business Corporation Law.
Based upon the foregoing factual allegations, the complaint asserts (1) that defendant Berlin engaged in extensive self-dealing with Arkwin, (2) that, in effect, the merger of Arkwin and Newark served no corporate purpose, and (3) that Berlin, as controlling stockholder of Arkwin, breached his fiduciary duty to treat minority stockholders fairly and equitably when, inter alia, he knowingly offered an inadequate price per share for the stock of the minority shareholders. The complaint claims further that plaintiff, as one of Arkwin’s minority stockholders, was injured by defendants’ conduct and has no adequate remedy at law. The relief sought was rescission of the merger, an accounting and damages. It should be noted, however, that subsequently in this action plaintiff stated: “The prayer for relief in the Class Action to set aside the merger is meaningless * * * because, like Humpty-Dumpty, arkwin cannot be restored now that it is effectively merged into Berlin’s wholly-owned corporation [i.e., the surviving corporation]. Plaintiff is willing to stipulate that said prayer be eliminated in the Class Action.” Thus, rescission is no longer sought in this action. Instead, as represented by plaintiff, the action seeks only an accounting and damages.
Defendants moved to dismiss the complaint on the ground, inter alia, that it fails to state a cause of action. They argued that the appraisal procedures established by section 623 of the Business Corporation Law were plaintiff’s exclusive remedy for the injuries alleged in the complaint, and that, since plaintiff did not avail itself of that statutory remedy, relief is unavailable by way of the instant action. Plaintiff cross-moved in opposition and sought an order, pursuant to CPLR 902, 903, and 904, permitting this action to be maintained as a class action. In denying defendants’ motion and granting the cross motion, *152Special Term held that the complaint states a valid cause of action for breach of a fiduciary duty. In effect, the court concluded that the appraisal procedures under section 623 of the Business Corporation Law were not the exclusive remedies for the injuries asserted and that plaintiff’s failure to avail itself of these procedures did not bar the instant action. We agree.
In Matter of Willcox v Stern (18 NY2d 195, 204), the Court of Appeals observed that “it has been a judicial principle that equity will act — despite the existence of an appraisal remedy — where there is fraud or illegality”. Thus, in Yoss v Sacks (26 AD2d 671), this court held that “an equity action to recover damages” would lie where minority shareholders allege “wrongful and fraudulent acts”.
Relying largely on Breed v Barton (54 NY2d 82), however, our dissenting colleague would dismiss the plaintiff’s action because, “[although originally requesting the equitable remedies of rescission and accounting”, the complaint, in its present state, shows a “fatal absence of any primary request for equitable relief”. In our view, the dissenter’s heavy reliance upon Breed v Barton (supra) is misplaced.
In that case, the relevant question as framed by the court was whether shareholders “who dissent from a corporate merger and pursue their statutory appraisal rights” may maintain an action for money damages for fraud alleged to have occurred in connection with a merger, absent a primary request for equitable relief (54 NY2d, at p 84; emphasis supplied). The court held that such an action may not be maintained uonce the appraisal right has been exercised” because “the Legislature intended to limit the type of action a dissenting shareholder would be entitled to prosecute in the face of an appraisal election” (54 NY2d, at pp 85, 86; emphasis supplied). Explaining the underlying rationale for its holding, the court wrote (p 87): “Allowing the prosecution of a legal action for damages after the exercise of the right of appraisal would be unnecessarily duplicative in that full and proper monetary recovery of the fair value of the dissenters’ share may be obtained in the appraisal *153proceeding. Limiting the exception to equitable relief thereby serves the valid function of denying dissenting shareholders the ability to reopen prior appraisal proceedings and again seek the identical relief merely by alleging fraudulent or unlawful corporate conduct in relation to the merger” (emphasis supplied).
In the instant case, the plaintiff has chosen not to institute a statutory appraisal proceeding, but rather to bring a plenary action. This election eliminates the danger of the type of duplicative proceeding which the holding in Breed v Barton (supra) was intended to prevent. We fail to perceive any reason why a dissenting shareholder who elects to forego a statutory appraisal proceeding may not pursue an action for an accounting and damages where he alleges that the protested merger was the product of the defendant’s unlawful and fraudulent conduct. The complaint here alleges patently fraudulent conduct and a flagrant breach by defendant Berlin of his fiduciary duty to the plaintiff. Accordingly, the motion to dismiss the complaint was properly denied.
We have considered the other contentions raised by defendants and find them to be without merit.