| Meadow Lane Equities Corp. v Hill |
| 2009 NY Slip Op 04395 [63 AD3d 699] |
| June 2, 2009 |
| Appellate Division, Second Department |
| Meadow Lane Equities Corp., Plaintiff, v Joey Hill et al.,Defendants and Third-Party Plaintiffs-Appellants. Rachel M. Harari, Third-PartyDefendant-Respondent. |
—[*1] Cohen & Warren, P.C., Smithtown, N.Y. (Michael F. Cohen and Evan M. Gitter of counsel),for third-party defendant-respondent.
In an action, inter alia, for a permanent injunction, the defendants third-party plaintiffsappeal (1), as limited by their brief, from so much of an order of the Supreme Court, NassauCounty (Phelan, J.), entered July 17, 2007, as granted the motion of the third-party defendant todismiss the third-party complaint pursuant to CPLR 3211 (a) (7), and (2) from so much of anorder of the same court entered October 23, 2007, as, upon reargument, adhered to the originaldetermination.
Ordered that the appeal from the order entered July 17, 2007 is dismissed, as that order wassuperseded by the order entered October 23, 2007, made upon reargument; and it is further,
Ordered that the order entered October 23, 2007 is modified, on the law, by deleting theprovision thereof, upon reargument, adhering to so much of the original determination in theorder entered July 17, 2007, as granted that branch of the motion of the third-party defendantwhich was to dismiss the ninth cause of action in the third-party complaint pursuant to CPLR3211 (a) (7), and substituting therefor a provision, upon reargument, vacating so much of theorder entered July 17, 2007, as granted that branch of the motion, and thereupon denying thatbranch of [*2]the motion; as so modified, the order enteredOctober 23, 2007 is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the respondent.
The defendants third-party plaintiffs Joey Hill and Linda Hill, formerly known as LindaCohen (hereinafter the Hills), are shareholders of the plaintiff Meadow Lane Equities Corp.(hereinafter Meadow), a residential cooperative corporation. In January 2007, after the Hillsallegedly made unauthorized alterations to their dwelling unit, Meadow commenced an actionagainst them seeking, inter alia, a permanent injunction. In March 2007 the Hills commenced athird-party action against the third-party defendant Rachel M. Harari, the president of Meadow'sboard of directors (hereinafter the Board), seeking to impose liability upon Harari in herindividual capacity. In an order entered July 17, 2007 the Supreme Court, among other things,granted Harari's motion to dismiss the third-party complaint pursuant to CPLR 3211 (a) (7) and,in an order entered October 23, 2007, made upon reargument, the Supreme Court adhered to itsoriginal determination. We modify.
The Supreme Court properly granted those branches of Harari's motion which were todismiss the first eight causes of action in the third-party complaint for failure to state a cause ofaction. "On a motion to dismiss pursuant to CPLR 3211 (a) (7), the court must determine,accepting as true the factual averments of the complaint and according the plaintiff the benefit ofall favorable inferences, whether the plaintiff can succeed upon any reasonable view of the factsas stated" (Schneider v Hand, 296 AD2d 454 [2002]). In their first eight causes of action,the Hills alleged that the Board breached its fiduciary duty and Meadow's contractual obligationsto them through various forms of mistreatment, including unequal treatment in comparison toother shareholders, and that the Board's actions were a result of Harari's domination and controlof the Board. Although unequal treatment of shareholders is sufficient to overcome the directors'insulation from liability under the business judgment rule, individual directors and officers maynot be subject to liability absent the allegation that they committed separate tortious acts (seeKonrad v 136 E. 64th St. Corp., 246 AD2d 324, 325-326 [1998]; DeCastro vBhokari, 201 AD2d 382, 383 [1994]). Here, because the Hills failed to plead, in the firsteight causes of action in the third-party complaint, that Harari acted tortiously other than in hercapacity as a member of the Board, the Supreme Court properly concluded that those causes ofaction should be dismissed pursuant to CPLR 3211 (a) (7) (see Pelton v 77 Park Ave. Condominium, 38 AD3d 1, 9-10 [2006];Brasseur v Speranza, 21 AD3d297, 298 [2005]; Konrad v 136 E. 64th St. Corp., 246 AD2d at 326; DeCastro vBhokari, 201 AD2d at 383).
However, the Supreme Court should not have dismissed the ninth cause of action in thethird-party complaint pursuant to CPLR 3211 (a) (7). In their ninth cause of action, the Hills seekto recover damages for trespass based upon allegations that Harari entered their dwelling unit ona certain date, without their permission or invitation, and took photographs. Accepting theseallegations as true, and affording the Hills the benefit of every favorable inference (seeSchneider v Hand, 296 AD2d at 454), the Hills adequately pleaded a cause of action torecover damages for trespass (seeCurwin v Verizon Communications [LEC], 35 AD3d 645 [2006]; Kaplan v Incorporated Vil. ofLynbrook, 12 AD3d 410, 412 [2004]; Zimmerman v Carmack, 292 AD2d 601,602 [2002]).
The Hills' remaining contentions are without merit. Spolzino, J.P., Santucci, Florio andBalkin, JJ., concur.