SELECT FABRICATORS, INC. v. HOGE, WILLIAM ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
593
CA 11-01298
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, AND LINDLEY, JJ.
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.
----------------------------------------------- MEMORANDUM AND ORDER
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.
Appeal from an order of the Supreme Court, Ontario County
(Kenneth R. Fisher, J.), entered February 3, 2011. The order granted
the motion of respondents for partial summary judgment dismissing
petitioner’s “counterclaims.”
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
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 (see CPLR 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
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CA 11-01298
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 AD3d 1623, 1624;
Blazynski v A. Gareleck & Sons, Inc., 48 AD3d 1168, 1169, lv dismissed
in part and denied in part 11 NY3d 825). 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 AD3d 1576, 1577 [internal quotation marks
omitted], lv dismissed 17 NY3d 774, 18 NY3d 877). 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 AD3d 1727, 1730).
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 generally CPLR 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 AD3d 312, 312-313).
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 AD3d 1274,
1275-1276 [internal quotation marks omitted]). Here, the allegedly
defamatory statements were pertinent and material to the action (see
id. at 1275), and they were made “ ‘in good faith and without
malice’ ” (Lacher v Engel, 33 AD3d 10, 13).
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 AD3d 1149,
1150 [internal quotation marks omitted]; see Liberman v Gelstein, 80
NY2d 429, 437; Mancuso v Allergy Assoc. of Rochester, 70 AD3d 1499,
1500). 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
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those statements were made (see East Point Collision Works v Liberty
Mut. Ins. Co., 271 AD2d 471, 471-472; Present v Avon Prods., 253 AD2d
183, 187-188, lv dismissed 93 NY2d 1032; see also Anas v Brown, 269
AD2d 761, 763). Petitioner failed to defeat the defense of qualified
privilege by demonstrating that Yearsley made the statements in
question with malice (see generally Liberman, 80 NY2d at 437-439;
Kondo-Dresser v Buffalo Pub. Schools, 17 AD3d 1114, 1115).
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 AD3d 1433, 1435, appeal
dismissed 12 NY3d 911, lv denied 13 NY3d 710). Finally, we have
reviewed petitioner’s remaining contention and conclude that it is
without merit.
Entered: June 8, 2012 Frances E. Cafarell
Clerk of the Court