| Cropsey v County of Orleans Indus. Dev. Agency |
| 2009 NY Slip Op 06917 [66 AD3d 1361] |
| October 2, 2009 |
| Appellate Division, Fourth Department |
| Conrad F. Cropsey, Appellant, v County of Orleans IndustrialDevelopment Agency, Doing Business as Orleans Economic Development Agency, et al.,Respondents. |
—[*1] Webster Szanyi LLP, Buffalo (Michael S. Cerrone of counsel), fordefendants-respondents.
Appeal from an order of the Supreme Court, Orleans County (James H. Dillon, J.), enteredJune 19, 2008 in a breach of contract action. The order granted defendants' motion to dismisscertain causes of action against defendant County of Orleans Industrial Development Agency,doing business as Orleans Economic Development Agency, and the complaint against defendantKenneth DeRoller.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action alleging that defendant County of OrleansIndustrial Development Agency, doing business as Orleans Economic Development Agency(COIDA), breached its contract with plaintiff by failing to pay for legal services rendered byplaintiff. Plaintiff also asserted, inter alia, a cause of action against COIDA for libel based onallegedly false statements concerning plaintiff that were included in a resolution of COIDA'sexecutive board, as well as causes of action against COIDA and defendant Kenneth DeRoller, amember of COIDA, for fraud. Contrary to plaintiff's contention, Supreme Court properly granteddefendants' motion pursuant to CPLR 3211 (a) (5) and (7) seeking to dismiss 15 causes of actionagainst COIDA and the complaint in its entirety against DeRoller. Thus, the only remainingcauses of action are those asserted against COIDA, based on theories of breach of contract andquantum meruit.
We agree with defendants that the cause of action for libel, asserted only against COIDA,and the causes of action for fraud, asserted against both COIDA and DeRoller, in his capacity asan agent for COIDA, were properly dismissed based on plaintiff's failure to include them in thenotice of claim (see De Cicco v Madison County, 300 AD2d 706, 707 n [2002]; seegenerally General Municipal Law § 50-e; Rosenbaum v City of New York, 8 NY3d 1, 10-11 [2006]). "Acondition precedent to commencing a tort action against an industrial development agency is theservice of a notice of claim upon it within 90 days after the claim arose" (Matter of Grant v Nassau County [*2]Indus. Dev. Agency, 60 AD3d 946, 947 [2009];see General Municipal Law § 50-e [1] [a]; § 880 [2]). Further, "GeneralMunicipal Law § 50-e makes unauthorized an action against individuals who have notbeen named in a notice of claim" where such a notice of claim is required by law (Tannenbaum v City of New York, 30AD3d 357, 358 [2006]), and here a notice of claim against DeRoller in his capacity as anagent for COIDA was required. Although we agree with plaintiff that no notice of claim wasrequired with respect to the actions of DeRoller in his individual capacity, we note that plaintiffconcedes on appeal that DeRoller could only be liable in his individual capacity with respect tothe fraud causes of action. Plaintiff therefore is deemed to have abandoned any contention withrespect to DeRoller in his individual capacity with the exception of his liability for fraud (seeCiesinski v Town of Aurora, 202 AD2d 984 [1994]).
Even assuming, arguendo, that the libel and fraud causes of action are not barred byplaintiff's failure to include them in the notice of claim, we would nevertheless conclude that thecourt properly granted the motion. With respect to the libel cause of action, asserted only againstCOIDA, we note that the language of the resolution of COIDA's executive board upon whichplaintiff premises that cause of action is not " 'reasonably susceptible of a defamatory meaning,[and thus] not actionable' " (Golub v Enquirer/Star Group, 89 NY2d 1074, 1076 [1997],quoting Aronson v Wiersma, 65 NY2d 592, 594 [1985]). With respect to the fraudcauses of action against both COIDA and DeRoller, in his individual capacity, " '[i]t is wellestablished that a separate cause of action for fraud is not stated where, as here, the alleged fraudrelates to the breach of contract' " (Logan-Baldwin v L.S.M. Gen. Contrs., Inc., 48 AD3d 1220, 1221[2008]). Further, plaintiff does not allege that DeRoller engaged in any fraudulent act in hisindividual capacity and thus has failed to distinguish the causes of action against DeRoller forfraud in his individual capacity from those against him for breach of contract or quantum meruit.The court therefore also properly dismissed the fraud causes of action against DeRoller in hisindividual capacity (see id. at 1220-1221).
Finally, we conclude that the court did not abuse its discretion in denying plaintiff's requestfor leave to replead the fraud causes of action (see Boakye-Yiadom v Roosevelt Union Free School Dist., 57 AD3d929, 931 [2008]). Present—Hurlbutt, J.P., Centra, Fahey, Pine and Gorski, JJ.