The following e-filed papers read herein: NYSCEF Doc Nos. Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) 11-20, 24-25, 43-50, 53-61, 109-115, 128-150 Opposing Affidavits (Affirmations) 44-50, 53-60, 90, 92-95 76, 79-85, 87, 89 117-118 Reply Affidavits (Affirmations) 101-105 124-127 119 Upon the foregoing papers in this derivative action to set aside and void the November 10, 2015 transfer of the commercial property at 735-741 65th Street in Brooklyn, the former headquarters and the sole asset of the Danish Athletic Club Inc., a New York not-for-profit corporation (DAC and the DAC Property), defendants DAC, Danish Athletic Club of Greater New York, Inc. (DAC of GNY), David M. Thorsen (David Thorsen) and Erik Bjornson (Bjornson) (the DAC Defendants) move (in motion sequence [mot. seq.] one) for an order, pursuant to CPLR 3211 (a) (1), (a) (3), (a) (5) and (a) (7), dismissing the amended complaint for: (1) lack of standing as plaintiffs’ “membership with D[AC] has been duly suspended pursuant to the bylaws” and/or they “lack standing to bring derivative claims…”; (2) documentary evidence refutes the alleged fraud; and (3) the fraud claims (the first, second and fourth causes of action) are time-barred (see NYSCEF Doc No. 11).1 Daniel J. Houlihan (Houlihan) “in his capacity as President of [defendant] 735 65th Street Funding Associates…” (735 Funding) moves (in mot. seq. two) for an order, pursuant to CPLR 3211 (a) (3) and (a) (7), dismissing the amended complaint for lack of capacity and failure to state a cause of action (NYSCEF Doc No. 24). Plaintiffs Barbara Kristiansen (Kristiansen) and Kjell Kittilsen (Kittilsen) in their derivative capacities as members of [DAC] move (in mot. seq. four), by order to show cause (OSC), for an order enjoining defendants from “selling, hypothecating, mortgaging and/or otherwise encumbering the [DAC Property,]” imposing a constructive trust “ for the sole benefit of DAC upon all bank accounts, funds and other forms of consideration that Defendants, their attorneys and/or escrow agents have already received and/or may receive in the future in connection with a pending and/or proposed sale of the DAC [Property] and/or that otherwise rightfully belong to DAC…” and granting them an extension of time within which to oppose defendants’ dismissal motions (see NYSCEF Doc No. 61). Defendant Harbor Realty Group, Inc. (Harbor) moves (in mot. seq. five) for an order dismissing the original complaint, pursuant to CPLR (a) (3) and (a) (7), and awarding it attorneys’ fees and costs, pursuant to NYCRR §130-1.1 (a) and (c) (Part 130). Harbor also moves (in mot. seq. six) for an order, pursuant to CPLR 3211 (a) (1), dismissing plaintiffs’ amended complaint. Background The Original Complaint On August 19, 2020, plaintiffs Kristiansen and Kittelsen, in their derivative capacities as alleged members of DAC, commenced this action, pursuant to Article Six of the New York Not-For-Profit Law, by filing a summons, a complaint (mislabeled as a “verified” complaint without any verification) and a notice of pendency against the DAC Property (see NYSCEF Doc Nos. 1-3). The complaint alleges that DAC, a self-managed social club for Danish, Norwegian and other Scandinavians, is located at, and has owned, the DAC Property since 1972 (NYSCEF Doc No. 1 at
1, 13, 14 and 17). The complaint alleges that defendant David Thorsen “has made and taken many unilateral decisions and actions that required the vote and approval by the DAC Board and/or the DAC general membership…” and “unduly influenced or coerced” the DAC Board (id. at
