| V. Groppa Pools, Inc. v Massello |
| 2013 NY Slip Op 03081 [106 AD3d 723] |
| May 1, 2013 |
| Appellate Division, Second Department |
| V. Groppa Pools, Inc., et al., Respondents, v FrankMassello, Jr., et al., Appellants, et al., Defendants. |
—[*1] Steven Felsenfeld, Croton-on-Hudson, N.Y., for respondents.
In an action to recover damages for misappropriation of proprietary information andslander, the defendants Frank Massello, Jr., and Absolute Pools & Spa, Inc., appeal froman order of the Supreme Court, Westchester County (Tolbert, J.), dated March 15, 2012,which granted the plaintiffs' motion pursuant to CPLR 3211 (a) (7) to dismiss theircounterclaims.
Ordered that the order is modified, on the law, by deleting the provision thereofgranting that branch of the plaintiffs' motion which was to dismiss the appellants' thirdcounterclaim, and substituting therefor a provision denying that branch of the motion; asso modified, the order is affirmed, without costs or disbursements.
The underlying facts are described in our decision and order on a related appeal(see V. Groppa Pools, Inc. v Massello, 106 AD3d 722 [2013] [decidedherewith]).
In September 2011, the plaintiffs moved pursuant to CPLR 3211 (a) (7) to dismissthe counterclaims of the defendants Frank Massello, Jr., and Absolute Pools & Spa, Inc.(hereinafter together the appellants). In an order dated March 15, 2012, the SupremeCourt granted the motion.
The Supreme Court properly granted those branches of the plaintiffs' motion whichwere to dismiss the appellants' first counterclaim, which alleged breach of contract, andtheir second counterclaim, which was for an accounting. Both the first and secondcounterclaims were vague and conclusory, and did not contain sufficiently particularizedallegations from which a cognizable cause of action could be inferred (see Mazzei v Kyriacou, 98AD3d 1088, 1090 [2012]). However, the Supreme Court erred in granting thatbranch of the plaintiffs' motion which was to dismiss the appellants' third counterclaim.This counterclaim, in which the defendant Frank Massello, Jr., alleged that, while he wasan employee of the plaintiffs, they failed to pay him certain wages and overtimecompensation to which he was entitled, adequately asserts a cause of action to recoverunpaid wages and other compensation (see Talon Air, Inc. v Kevin Francis Madden, 80 AD3d 746,748 [2011]).
The parties' remaining contentions either are without merit or have been renderedacademic by our determination. Dillon, J.P., Balkin, Austin and Cohen, JJ., concur.