| Rodolico v Rubin & Licatesi, P.C. |
| 2013 NY Slip Op 08068 [112 AD3d 608] |
| December 4, 2013 |
| Appellate Division, Second Department |
| Rosario Rodolico, Respondent, v Rubin &Licatesi, P.C., et al., Appellants. |
—[*1] Goldman, Horowitz & Cherno, LLP, Westbury, N.Y. (Steven D. Greif of counsel),for respondent.
In an action, inter alia, to recover damages for legal malpractice, the defendantsappeal, as limited by their brief, from so much of an order of the Supreme Court, SuffolkCounty (LaSalle, J.), dated July 3, 2012, as, upon directing, among other things, thatC&R Door and Frame Corporation, a corporation owned by the plaintiff and his wife, bejoined as a party plaintiff, denied their cross motion pursuant to CPLR 3211 (a) (1) and(3) to dismiss the complaint.
Ordered that the order is modified, on the law, by deleting the provisions thereofdenying those branches of the defendants' cross motion which were pursuant to CPLR3211 (a) (3) to dismiss the second and fourth causes of action, and substituting therefor aprovision granting those branches of the cross motion insofar as those causes of actionwere asserted by the plaintiff in his individual capacity and otherwise denying thosebranches of the cross motion; as so modified, the order is affirmed insofar as appealedfrom, without costs or disbursements.
The plaintiff's daughter worked for the defendant law firm, in which the individualdefendants are partners. During her employment, the plaintiff came to learn of aninvestment opportunity being organized by the defendants, which involved providinghigh interest, short-term loans for the development of real estate. The plaintiff and hiswife, Joanne Rodolico, decided to participate. Several bank checks were purchased byJoanne and a corporation owned by the plaintiff and Joanne, C&R Door and FrameCorporation (hereinafter C&R), and forwarded to the defendants for the purpose ofmaking loans. When five of the loans were not repaid in full, the plaintiff commencedthis action seeking to recover from the defendants the money that he was owed, claimingthat the defendants effectively borrowed the money from him. Alternatively, the plaintiffsought damages for legal malpractice. The plaintiff made a pre-discovery motion forsummary judgment on the complaint, which motion is not the subject of this appeal, andthe defendants cross-moved to dismiss the complaint pursuant to CPLR 3211 (a) (1) and(3), for lack of standing and based upon documentary evidence. The Supreme Courtdenied the motion and cross motion, and also directed that Joanne and C&R be joined asplaintiffs in the action.
In support of that branch of their cross motion which was to dismiss the complaint[*2]for lack of standing, the defendants argued that theplaintiff had no interest in the loaned funds because two of the loans, for which theplaintiff sought recovery in the second and fourth causes of action, were funded by C&R,and three of the loans, for which the plaintiff sought recovery in the first, third, and fifthcauses of action, were funded by Joanne. The plaintiff does not deny that the funds fortwo of the loans were provided by C&R, but merely asserts that he and Joanne ownC&R. However, "[f]or a wrong against a corporation a shareholder has no individualcause of action, though he loses the value of his investment" (Abrams v Donati,66 NY2d 951, 953 [1985]; see Citibank v Plapinger, 66 NY2d 90, 93 n [1985];Elenson v Wax, 215 AD2d 429 [1995]; General Motors Acceptance Corp. vKalkstein, 101 AD2d 102, 106 [1984]). Here, the plaintiff's action was brought inhis own name, and there is nothing in the complaint to indicate that the plaintiff broughtthis action in a derivative capacity, on behalf of C&R. Accordingly, since the plaintiffdoes not have standing, individually, to seek the return of funds purportedly borrowedfrom C&R by the defendants, the second and fourth causes of action should have beendismissed insofar as they were asserted by the plaintiff in his individual capacity.
The same is not true, however, of the first, third, and fifth causes of action, whichsought the return of funds that the defendants allege were provided by Joanne. Theplaintiff and Joanne averred that, although Joanne went to the bank to purchase the bankchecks, they do not keep their finances separate, and the funds belonged to both of them.The defendants presented no evidence to the contrary. The plaintiff, therefore, hadstanding to seek the return of the funds (see generally Wells Fargo Bank Minn., N.A. v Mastropaolo, 42AD3d 239, 242 [2007]), and the Supreme Court properly denied the branch of thedefendants' motion which sought dismissal of the first, third, and fifth causes of actionfor lack of standing.
The Supreme Court also properly denied the branch of the defendants' motion whichwas to dismiss the sixth cause of action, alleging legal malpractice, pursuant to CPLR3211 (a) (1). The evidence submitted in support of a motion pursuant to CPLR 3211 (a)(1) to dismiss a complaint on the ground that a defense is founded on documentaryevidence "must be documentary or the motion must be denied" (Cives Corp. v George A. FullerCo., Inc., 97 AD3d 713, 714 [2012], quoting Fontanetta v John Doe 1, 73AD3d 78, 84 [2010] [internal quotation marks omitted]). " ' [N]either affidavits,deposition testimony, nor letters are considered documentary evidence within theintendment of CPLR 3211 (a) (1)' " (Cives Corp. v George A. Fuller Co., Inc., 97AD3d at 714, quoting Granada Condominium III Assn. v Palomino, 78 AD3d 996, 997 [2010]; see Suchmacher v Manana Grocery, 73 AD3d 1017 [2010];Fontanetta v John Doe 1, 73 AD3d at 86).
Here, the only evidence submitted by the defendants that pertained to the legalmalpractice cause of action were affidavits. Accordingly, since the defendants failed tosupport the branch of their motion seeking to dismiss the legal malpractice cause ofaction pursuant to CPLR 3211 (a) (1) with "documentary" evidence, it was properlydenied (see Cives Corp. v George A. Fuller Co., Inc., 97 AD3d at 714; Integrated Constr. Servs., Inc. vScottsdale Ins. Co., 82 AD3d 1160, 1163 [2011]; Fontanetta v John Doe1, 73 AD3d at 86). Mastro, J.P., Skelos, Balkin and Sgroi, JJ., concur.