| Mintz & Gold, LLP v Zimmerman |
| 2008 NY Slip Op 09184 [56 AD3d 358] |
| November 20, 2008 |
| Appellate Division, First Department |
| Mintz & Gold, LLP, Respondent-Appellant, v DanielZimmerman et al., Appellants-Respondents, et al., Defendant. |
—[*1] Lax & Neville, LLP, New York (Barry R. Lax of counsel), forrespondent-appellant.
Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered October 3,2007, which granted so much of the motion by defendants Zimmerman and Steven Cohn, P.C. todismiss the second cause of action but denied that portion seeking dismissal of the first cause ofaction, unanimously affirmed, without costs.
The amended complaint sets forth a cognizable cause of action under Civil Rights Law§ 70. Defendants had commenced an action against plaintiff in the name of a corporationat the direction of defendant Hart, who was elected president of that corporation solely as theresult of an arbitration award, enforcement of which had been stayed. During the pendency ofthat action, the Appellate Division, Second Department, vacated the order granting Hart's motionto compel arbitration, finding he had waived his right to arbitration by commencing an action incourt. Once the Second Department rendered its decision, the rights and duties of the parties werereestablished as if no order had been made (Golde Clothes Shops, Inc. v Loew's BuffaloTheatres, Inc., 236 NY 465, 470 [1923]). Hart was thus no longer the elected president andlacked the authority to continue prosecuting the action. The allegation that Zimmerman andSteven Cohn, P.C. proceeded with the action maliciously, without the consent of the corporation,states a cause of action under the statute.
As to the cause of action for libel, the statements were made in the course of judicial [*2]proceedings, were pertinent to that litigation, and thus wereprivileged (Sexter & Warmflash, P.C. vMargrabe, 38 AD3d 163, 172 [2007]). Concur—Tom, J.P., Saxe, Sweeny,Catterson and DeGrasse, JJ. [See 17 Misc 3d 972.]