Johnson v. Asberry
| Decision Date | 12 January 2021 |
| Docket Number | Case No. 2019-5390,12851,Index No. 653236/18 |
| Citation | 190 A.D.3d 491,135 N.Y.S.3d 830 (Mem) |
| Parties | Melissa JOHNSON, Plaintiff–Respondent, v. Tiffany ASBERRY, Defendant–Appellant, Asberry Holding Company, LLC, Defendant. Johnson & Asberry Communications, LLC, Non–Party Appellant. |
| Court | New York Supreme Court — Appellate Division |
190 A.D.3d 491
135 N.Y.S.3d 830 (Mem)
Melissa JOHNSON, Plaintiff–Respondent,
v.
Tiffany ASBERRY, Defendant–Appellant,
Asberry Holding Company, LLC, Defendant.
Johnson & Asberry Communications, LLC, Non–Party Appellant.
12851
Index No. 653236/18
Case No. 2019-5390
Supreme Court, Appellate Division, First Department, New York.
ENTERED: January 12, 2021
McGlashan Law Firm, P.C., New York (Patrick McGlashan of counsel), for appellant.
Pryor Cashman LLP, New York (James S. O'Brien, Jr. of counsel), for respondent.
Acosta, P.J., Webber, Gonza´lez, Scarpulla, JJ.
Order, Supreme Court, New York County (Tanya R. Kennedy, J.), entered June 13, 2019, which, inter alia, denied defendant Tiffany Asberry's CPLR 3211(a) motion to dismiss the complaint and directed that nonparty Johnson and Asberry Communications, LLC (J & A) be summoned and interpose an answer to the complaint, unanimously affirmed, without costs.
Asberry and plaintiff were member-managers of J & A, with Asberry holding a 51% majority interest. Asberry asserts that she undertook a series of actions, culminating with the merger of defendant Asberry Holding Company, LLC, her solely owned entity, into J & A, with the effect of wiping out plaintiff's 49% interest in J & A, in good faith and in the best interests of J & A, in order to forestall a threatened dissolution of the company by plaintiff. Asberry thus argues that she is protected from liability to plaintiff by an exculpatory provision in J & A's original operating agreement. Asberry presents the operating agreement as documentary evidence establishing her defense.
Asberry's arguments are unavailing, as ultimately they turn on the contentions in her opposition affidavit that she was acting in good faith in the company's best interests. Affidavits are not documentary evidence and are not appropriate proof on a CPLR 3211(a)(1) motion to dismiss (see Correa v. Orient–Express Hotels, Inc., 84 A.D.3d 651, 651, 924 N.Y.S.2d 336 [1st Dept. 2011] ; Williamson, Picket, Gross, Inc. v. Hirschfeld, 92 A.D.2d 289, 290, 460 N.Y.S.2d 36 [1st Dept. 1983], appeal dismissed 60 N.Y.2d 585, 1983 WL 211836 [1983] ). Whether Asberry exercised business...
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