Pontarelli v. Shapero
| Decision Date | 12 September 1996 |
| Citation | 231 A.D.2d 407,647 N.Y.S.2d 185 |
| Parties | Jane PONTARELLI, Plaintiff-Appellant, v. Sanford M. SHAPERO, et al., Defendants-Respondents. |
| Court | New York Supreme Court — Appellate Division |
David Abramovitz, for plaintiff-appellant.
Ellen Gesmer, for defendants-respondents.
Before ROSENBERGER, J.P., and ELLERIN, RUBIN and KUPFERMAN, JJ.
Order and judgment (one paper), Supreme Court, New York County (Edward Greenfield, J.), entered March 31, 1995, which, inter alia, granted defendants' motion to dismiss the complaint, without prejudice to the commencement of a CPLR article 78 proceeding, if warranted, after the exhaustion of administrative remedies, unanimously modified, on the law, without costs, to deny the motion as to plaintiff's first cause of action against defendant City of Hope, and otherwise affirmed.
Initially, plaintiff was entitled to amend her complaint as of right (CPLR 3025[a], and we will therefore review the allegations as they appear in the amended complaint.
In her amended complaint, plaintiff alleges that she was, for several years, a member of, and then president of, the New York based "East End" Auxiliary Chapter of defendant City of Hope, a nationally recognized California not-for-profit hospital and research organization. The East End Auxiliary Chapter existed for the purpose of raising funds for City of Hope's work and, during plaintiff's three-year tenure as president, raised in excess of $750,000 for that purpose. Plaintiff, who served without salary and was concededly one of City of Hope's most successful fundraisers and the recipient of a number of awards, admits that for the first few years of her tenure as president, she remained essentially unaware of the Chapter's specific financial transactions.
In 1991, she began to realize that, as president, she should familiarize herself with the details of the Chapter's finances. She therefore requested of the Chapter's treasurer, defendant Mary Mallen, specific information regarding the income and expenses involved in various events, and also asked that, in the future, the treasurer submit information regarding all deposits to and checks drawn on the Chapter's bank account for review by the Chapter's board of directors at their meetings. Plaintiff notes that these requests were in accord with the Chapter's bylaws, which require the treasurer to submit at every local board meeting a current financial report and to immediately report in writing to committee chairs regarding any fundraising activities.
Plaintiff continued to request such information from Ms. Mallen, but was unable to obtain satisfactory responses. Instead, she learned that, although the bylaws require that all checks drawn on the Chapter's account be signed by two signatories, i.e., two officers of the Auxiliary, preferably the Treasurer and the President of the Auxiliary, and/or two members of the City of Hope executive staff at the Regional or National level, it was Ms. Mallen's practice to have the checks signed in blank by other officers of the Chapter so that she could simply issue them on her own. Plaintiff had never signed or even seen any checks before their issuance. Nor had she or the board ever received any financial statement or bank statement during her tenure as president.
Then, in February of 1992, plaintiff was presented with the Chapter's tax return for her signature. The return did not have the preparer's name on it and Ms. Mallen declined to tell plaintiff who had prepared it. Plaintiff was also concerned because, although she had been president for several years, and although it appeared that her signature was required on the Chapter's return, she had never before been asked to sign a tax return. Moreover, upon examining the return, it appeared to her that the Chapter's income and expenses were not being reported accurately.
A board meeting was then scheduled and Ms. Mallen was informed that she would be expected to present a report detailing all disbursements for the prior fiscal year, the period covered by the tax return. At that meeting, plaintiff felt that the information which was provided was incomplete. Moreover, after the meeting, a letter went out to the directors of the Chapter who had not been present over what purported to be plaintiff's signature, informing them, in essence, that Ms. Mallen's work had been satisfactory, that the financial difficulties had been resolved, and that, in the future, the accounting and bookkeeping for the Chapter would be handled by a computerized system in California at the charity's national headquarters. Plaintiff claims that this letter, which bears a signature which does not resemble plaintiff's, was not written or authorized by her. Upon becoming aware of it, plaintiff, who now was convinced that there had been financial improprieties, immediately sent a letter to the Chapter's directors, which she copied to the regional or national headquarters, stating that she had not authorized the prior communication and that her efforts to obtain and make available to the Chapter's board a "complete and detailed accounting of the disposition of the proceeds of collections" had been "frustrated".
In light of this evidence of impropriety, plaintiff, who had received $4500 in the charity's name, decided, upon consultation with several other board members, to open a separate bank account in City of Hope's name in which to deposit these funds so as to safeguard them. On March 18, 1992, a meeting of the Chapter's board was held to discuss the opening of this account and plaintiff's actions were ratified by the board. Later on the same day, plaintiff received a fax from defendant Sanford Shapero, chief executive officer of the national organization, informing her that her Chapter presidency and membership in the organization were being terminated based on her opening of an unauthorized bank account and her failure to provide information to her Chapter's treasurer regarding money received on the charity's behalf.
On March 24, 1992 a letter was sent by Mr. Shapero to members of the East End Chapter informing them that, as of March 19, plaintiff would no longer be serving as either President or member of the Chapter. Subsequently, on April 3, 1992, a letter was sent to members of the East End Chapter, apparently in response to inquiries and/or protests regarding plaintiff's ouster, which stated:
In order to protect the confidentiality between Mrs. Jane Pontarelli and the City of Hope ... it would be inappropriate for us to go into any details concerning the parent Corporation's Board of Director's action in the situation regarding Mrs. Pontarelli.
Please rest assured that when the Board of Directors of the City of Hope, our volunteer governing body, is forced to take action with fellow volunteers there are always exceptional and extraordinary circumstances...
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