| Congel v Malfitano |
| 2009 NY Slip Op 03123 [61 AD3d 809] |
| April 21, 2009 |
| Appellate Division, Second Department |
| Robert J. Congel et al., Respondents, v Marc A. Malfitano,Appellant. |
—[*1] Corbally, Gartland and Rappleyea, LLP, Poughkeepsie, N.Y. (Vincent L. DeBiase, Paul F.Ware Jr., P.C., Jennifer L. Chunias, and Goodwin Procter LLP [Anthony S. Fiotto], of counsel),for respondents.
In an action, inter alia, to recover damages for breach of contract and breach of fiduciaryduty and for a judgment declaring that the defendant wrongfully dissolved the PoughkeepsieGalleria Company Partnership, the defendant appeals from an order of the Supreme Court,Dutchess County (Pagones, J.), dated November 28, 2007, which granted the plaintiffs' motion toconfirm a referee's report awarding them costs and disbursements pursuant to CPLR 6514 (c) inthe sum of $37,130 and directed the defendant to pay a referee's fee in the sum of $4,466, andgranted the plaintiffs' separate motion pursuant to CPLR 3025 (b) for leave to amend thecomplaint.
Ordered that the order is modified, on the law, by deleting the provisions thereof granting theplaintiffs' motion to confirm the referee's report and directing the defendant to pay the referee'sfee and substituting therefor provisions denying that motion and directing the plaintiffs to payone half of the referee's fee and the defendant to pay one half of the referee's fee; as so modified,the order is affirmed, without costs or disbursements.
Contrary to the defendant's contention, in granting leave to amend the complaint to add acause of action alleging trade libel, the Supreme Court properly concluded that that cause ofaction was pleaded with particularity (see CPLR 3016 [a]; cf. Fusco v Fusco, 36 AD3d 589,591 [2007]). The defendant's contention that the language quoted in the complaint is notdefamatory is improperly [*2]raised for the first time in his replybrief (see Borbeck v Hercules Constr.Corp., 48 AD3d 498, 499 [2008]; Cappiello v Johnson, 21 AD3d 921, 922 [2005]).
The Supreme Court improperly granted the plaintiffs' motion to confirm a referee's reportawarding them costs and disbursements and improperly directed the defendant to pay all of thereferee's fee. The plaintiffs should have been directed to pay one half of the referee's fee (seeCongel v Malfitano, 61 AD3d 807 [2009] [decided herewith]). Spolzino, J.P., Covello,Balkin and Belen, JJ., concur.