The New York Supreme Court Appellate Division, First Department issued a decision in Yudell v. Gilbert, Case No. 600404/08 (Aug. 7, 2012) affirming the dismissal of an action regarding a joint venture.  See decision here.  The Court, in analyzing the difference between a direct and a derivative action, stated that “New York lacked a clear approach for determining this difference:…[O]ur jurisprudence consists of case by case analysis, that are sometimes difficult to apply to new fact patterns.”  Instead of addressing New York law, the Court turned to what it called the “common sense” approach enumerated by the Delaware Supreme Court in Tooley v. Donaldson, Lufkin & Jerette, Inc., 845 A.2d 1031, 1039 (Del. 2004) (where the Court in making a determination as to what is a direct or derivative claim, considers with respect to either the individual shareholder or the corporation (1) who suffered the alleged harm, and (2) who would receive the benefit of any recovery or other remedy).