Opinion
2012-06-8
In the Matter of the Application of William HOGE, Petitioner–Appellant, For the Dissolution of Select Fabricators, Inc.; Select Fabricators, Inc., Gary W. Winch, and David Yearsley, Respondents–Respondents. Select Fabricators, Inc., Plaintiff, v. William Hoge and William Hoge Consulting, Inc., Defendants–Appellants.
William S. Roby, Rochester, for Petitioner–Appellant and Defendants–Appellants. Jason S. Diponzio, Rochester, for Respondents–Respondents.
William S. Roby, Rochester, for Petitioner–Appellant and Defendants–Appellants. Jason S. Diponzio, Rochester, for Respondents–Respondents.
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, AND LINDLEY, JJ.
MEMORANDUM:
Select Fabricators, Inc. (SFI) commenced an action against William Hoge and William Hoge Consulting, Inc. (WHC) seeking, inter alia, damages for misconduct pursuant to Business Corporation Law § 720 and unjust enrichment. Hoge (hereafter, petitioner), a shareholder of SFI, thereafter commenced a proceeding pursuant to Business Corporation Law § 1104–a seeking, inter alia, dissolution of SFI, a respondent in that proceeding, and asserting what the parties characterize as “counterclaims” against it and its other shareholders, respondents Gary W. Winch and David Yearsley. The action and proceeding were subsequently consolidated. Petitioner and WHC appeal from an order granting the motion of respondents, i.e., SFI, Winch and Yearsley, for partial summary judgment dismissing the counterclaims in the proceeding. We affirm. We note, however, that WHC, which is not a party to the proceeding, is not a proper appellant ( seeCPLR 5511).
Petitioner's contention that Supreme Court erred in granting respondents' motion because issue had not been joined at the time it was made pursuant to CPLR 3212(a), or because respondents failed to submit the requisite supporting proof pursuant to CPLR 3212(b) is raised for the first time on appeal and thus is not properly before us ( see e.g. Chapman v. Pyramid Co. of Buffalo, 63 A.D.3d 1623, 1624, 881 N.Y.S.2d 246; Blazynski v. A. Gareleck & Sons, Inc., 48 A.D.3d 1168, 1169, 852 N.Y.S.2d 500,lv. dismissed in part and denied in part11 N.Y.3d 825, 868 N.Y.S.2d 593, 897 N.E.2d 1077). To the extent that petitioner advanced that contention in support of his motion for leave to reargue his opposition to the prior motion of respondents, we note that “[r]eargument does not provide a party an opportunity to advance arguments different from those tendered on the original application” ( Garland v. RLI Ins. Co., 79 A.D.3d 1576, 1577, 914 N.Y.S.2d 509 [internal quotation marks omitted], lv. dismissed17 N.Y.3d 774, 929 N.Y.S.2d 76, 952 N.E.2d 1069,18 N.Y.3d 877, 939 N.Y.S.2d 290, 962 N.E.2d 781). Petitioner's further contention that the court erred in granting that part of the motion for partial summary judgment dismissing the counterclaim for “Unfair Competition—Customer Lists” is raised for the first time in his reply brief, and thus it also is not properly before us ( see Pieri v. B & B Welch Assoc., 74 A.D.3d 1727, 1730, 904 N.Y.S.2d 595).
In addition, petitioner contends that the court erred in denying his request to “replead” in the event that the court awarded respondents partial summary judgment ( see generallyCPLR 3025[a], [b] ). We are unable to review that contention, however, inasmuch as the record contains no evidence concerning the timing, nature or substance of that request, and “a party alleging error must present an adequate record for appellate review” ( de Vries v. Metropolitan Tr. Auth., 11 A.D.3d 312, 312–313, 783 N.Y.S.2d 540).
We conclude that the court properly granted that part of respondents' motion seeking partial summary judgment dismissing the counterclaim for “Defamation—Abuse of Process.” “[O]ral or written statements made in the course of a judicial proceeding are absolutely privileged, notwithstanding the motive with which they are made, so long as they are material and pertinent to the litigation ... In determining whether an allegedly defamatory statement is pertinent and material to a judicial proceeding, the court must accord the statement an extremely liberal construction” ( Solomon v. Larivey, 49 A.D.3d 1274, 1275–1276, 853 N.Y.S.2d 770 [internal quotation marks omitted] ). Here, the allegedly defamatory statements were pertinent and material to the action ( see id. at 1275, 853 N.Y.S.2d 770), and they were made “ ‘in good faith and without malice’ ” ( Lacher v. Engel, 33 A.D.3d 10, 13, 817 N.Y.S.2d 37).
Contrary to petitioner's further contention, the court properly granted that part of respondents' motion for partial summary judgment dismissing the counterclaim for “Defamation–Libel” inasmuch as the statements at issue with respect thereto are protected by a qualified privilege. “A qualified privilege arises when a person makes a good[ ]faith, bona fide communication upon a subject in which he or she has an interest, or a legal, moral or societal interest to speak, and the communication is made to a person with a corresponding interest” ( Cusimano v. United Health Servs. Hosps., Inc., 91 A.D.3d 1149, 1150, 937 N.Y.S.2d 413 [internal quotation marks omitted]; see Liberman v. Gelstein, 80 N.Y.2d 429, 437, 590 N.Y.S.2d 857, 605 N.E.2d 344;Mancuso v. Allergy Assoc. of Rochester, 70 A.D.3d 1499, 1500, 895 N.Y.S.2d 756). Here, respondents established that Yearsley's statements on behalf of SFI regarding purchases made by petitioner using SFI's credit card were of mutual interest to SFI and the company to which those statements were made ( see East Point Collision Works v. Liberty Mut. Ins. Co., 271 A.D.2d 471, 471–472, 706 N.Y.S.2d 700;Present v. Avon Prods., 253 A.D.2d 183, 187–188, 687 N.Y.S.2d 330,lv. dismissed93 N.Y.2d 1032, 697 N.Y.S.2d 555, 719 N.E.2d 914;see also Anas v. Brown, 269 A.D.2d 761, 763, 702 N.Y.S.2d 732). Petitioner failed to defeat the defense of qualified privilege by demonstrating that Yearsley made the statements in question with malice ( see generally Liberman, 80 N.Y.2d at 437–439, 590 N.Y.S.2d 857, 605 N.E.2d 344;Kondo–Dresser v. Buffalo Pub. Schools, 17 A.D.3d 1114, 1115, 794 N.Y.S.2d 768).
We further conclude that the court properly granted that part of respondents' motion for partial summary judgment dismissing the counterclaim for “Conspiracy” because “ ‘New York does not recognize civil conspiracy to commit a tort as an independent cause of action’ ” ( Thyroff v. Nationwide Mut. Ins. Co., 57 A.D.3d 1433, 1435, 870 N.Y.S.2d 666,appeal dismissed 12 N.Y.3d 911, 884 N.Y.S.2d 689, 912 N.E.2d 1070,lv. denied13 N.Y.3d 710, 2009 WL 3427956). Finally, we have reviewed petitioner's remaining contention and conclude that it is without merit.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.