| V. Groppa Pools, Inc. v Massello |
| 2013 NY Slip Op 03080 [106 AD3d 722] |
| May 1, 2013 |
| Appellate Division, Second Department |
| V. Groppa Pools, Inc., et al., Appellants, v FrankMassello, Jr., et al., Defendants, and Scott Renda et al.,Respondents. |
—[*1] Joseph A. Maria, P.C., White Plains, N.Y., for respondents.
In an action to recover damages for misappropriation of proprietary information andslander, the plaintiffs appeal from an order of the Supreme Court, Westchester County(Tolbert, J.), dated October 28, 2011, which denied their motion pursuant to CPLR 3211(a) (7) to dismiss the counterclaims of the defendants Scott Renda and Scott RendaPools, LLC.
Ordered that the order is modified, on the law, by deleting the provision thereofdenying that branch of the plaintiffs' motion which was to dismiss the third counterclaimof the defendants Scott Renda and Scott Renda Pools, LLC, and substituting therefor aprovision granting that branch of the motion; as so modified, the order is affirmed,without costs or disbursements.
The plaintiff Vincent Groppa is the principal of the plaintiff V. Groppa Pools, Inc., apool servicing business located in Westchester County. The defendant Frank Massello,Jr., was employed by the plaintiffs from approximately April 2006 until he left in oraround December 2010. He is the principal of the defendant Absolute Pools & Spa, Inc.The defendant Scott Renda was employed by the plaintiffs from approximately 1995until he left in or around April 2011. He is the principal of the defendant Scott RendaPools, LLC. In or about May 2011 the plaintiffs commenced this action against thedefendants, alleging misappropriation of proprietary information and slander. On June24, 2011, Renda and Scott Renda Pools, LLC (hereinafter together the Rendadefendants), interposed a verified answer with three counterclaims. On August 30, 2011,Massello and Absolute Pools & Spa, Inc. (hereinafter together the Massello defendants),interposed a verified answer with three counterclaims. In July 2011, the plaintiffs movedpursuant to CPLR 3211 (a) (7) to dismiss the Renda defendants' counterclaims. In anorder dated October 28, 2011, the Supreme Court denied the motion.
When assessing a motion to dismiss a complaint or counterclaim pursuant to CPLR3211 (a) (7) for failure to state a cause of action, the court must afford the pleading aliberal construction, accept as true all facts as alleged in the pleading, accord the pleaderthe benefit of every possible inference, and determine only whether the facts as allegedfit within any cognizable legal theory (see Rabos v R&R Bagels & Bakery, Inc., 100 AD3d 849,851 [2012]; Mazzei vKyriacou, 98 AD3d 1088, 1089 [2012]; Yellow Book Sales & Distrib. Co., Inc. v Hillside Van Lines,Inc., 98 AD3d 663, 664 [2012]). The allegations of the pleading cannot bevague and conclusory (see Phillips v Construction, 101 [*2]AD3d 1097 [2012]), but must contain sufficientlyparticularized allegations from which a cognizable cause of action reasonably could befound (see Mazzei v Kyriacou, 98 AD3d at 1090). The test of the sufficiency of apleading is " 'whether it gives sufficient notice of the transactions, occurrences, or seriesof transactions or occurrences intended to be proved and whether the requisite elementsof any cause of action known to our law can be discerned from its averments' "(Moore v Johnson, 147 AD2d 621, 621 [1989], quoting Pace v Perk, 81AD2d 444, 449 [1981]).
The Supreme Court properly denied those branches of the plaintiffs' motion whichwere to dismiss the Renda defendants' first and second counterclaims, as thosecounterclaims adequately alleged causes of action to recover damages for breach ofcontract (see JP Morgan Chasev J.H. Elec. of N.Y., Inc., 69 AD3d 802, 803 [2010]) and for an accounting (see Center for Rehabilitation &Nursing at Birchwood, LLC v S & L Birchwood, LLC, 92 AD3d 711, 713[2012]). However, the Supreme Court should have granted that branch of the plaintiffs'motion which was to dismiss the Renda defendants' third counterclaim. Thiscounterclaim sought payment for lost wages allegedly incurred by Scott Renda when heleft his previous employment in reliance upon the plaintiffs' alleged promise to give hima 20% interest in V. Groppa Pools, Inc. Since this counterclaim merely alleges a breachof contract, and the measure of damages applicable to the third counterclaim is nodifferent from that applicable to the other counterclaims, the third counterclaim cannotform a cause of action independent of the first and second counterclaims (see Burton v Matteliano, 81AD3d 1272, 1275 [2011]), but must be deemed to be subsumed therein.
The parties' remaining contentions either are without merit or have been renderedacademic by our determination. Dillon, J.P., Balkin, Austin and Cohen, JJ., concur.