Fischer v. Maloney
| Decision Date | 14 February 1978 |
| Citation | 373 N.E.2d 1215,43 N.Y.2d 553,402 N.Y.S.2d 991 |
| Parties | , 373 N.E.2d 1215 Bernard FISCHER, Respondent-Appellant, v. Grace S. MALONEY et al., Appellants-Respondents, et al., Defendants. |
| Court | New York Court of Appeals Court of Appeals |
Julius Gantman and James B. Reich, New York City, for appellants-respondents.
Edward L. Schiff, New York City, and Mark Jacobs, White Plains, for respondent-appellant.
Plaintiff does not state a cause of action either under sections 70 and 71 of the Civil Rights Law or in tort for intentional infliction of severe emotional distress. Accordingly, summary judgment should be granted dismissing the complaint.
Plaintiff is a tenant and shareholder in Southridge Cooperative, Section No. 2, Inc., a residential co-operative corporation. When the board of directors of the co-operative refused to meet with him and other tenant-stockholders of like mind, they formed a committee to be known as "Tenants Council" to obtain financial, managerial and operational information with respect to the management and operations of the co-operative. Confronted with resistance from the directors and their refusal to disclose the desired information, the Tenants Council circulated a petition among all the tenant-stockholders calling for a special meeting of the stockholders for the purpose of voting to remove the entire board of directors from office. Plaintiff was active in soliciting signatures on the petition.
Friction ensued and an action in defamation was brought in the name of the co-operative against plaintiff charging that in the course of circulating the petition he had falsely accused the vice-president of the co-operative of having had her apartment painted at a cost of $4,000 to the co-operative. When the defamation action was dismissed for failure to state a cause of action on behalf of the co-operative corporation, plaintiff instituted the present action against individual members of the board of directors. His complaint sets forth two causes of action the first under sections 70 and 71 of the Civil Rights Law alleges that the defamation action was commenced by defendants vexatiously and maliciously in the name of the co-operative but without its consent, the second is in tort for intentional infliction of severe emotional distress.
Defendants' motion for summary judgment dismissing the complaint for failure to state a cause of action was denied at Special Term. The Appellate Division modified by granting the motion to the extent of dismissing the first cause of action under sections 70 and 71 but affirmed the refusal to dismiss the second cause of action on the ground that it presented questions of fact which could only be resolved after a trial. We conclude that both causes of action should be dismissed.
With reference to the first cause of action, even if it were to be concluded that there was a failure to comply literally with the provisions of the by-laws of the corporation in the giving of notice of the meeting of the board of directors at which it was decided to commence the defamation action, it is undisputed that the institution of the action was authorized by the president of the corporation. In this circumstance we agree with both courts below that the action cannot then be said to have been commenced or continued without the consent of the co-operative corporation. (West View Hills v. Lizau Realty Corp., 6 N.Y.2d 344, 189 N.Y.S.2d 863, 160 N.E.2d 622; see 12 N.Y.Jur., Corporations, § 672; 2 Fletcher, Cyclopedia Corporations, § 618.) Accordingly no cause of action is stated under sections 70 and 71 of the Civil Rights Law.
Similarly no cause of action is stated for intentional infliction of severe emotional distress, the allegations of the complaint and the assertions in their support being viewed in the perspective most favorable to plaintiff. He relies...
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