R.M. Newell Co., Inc. v. Rice

• Decision Date: 07 February 1997
• Citation: R.M. Newell Co., Inc. v. Rice, 236 A.D.2d 843, 653 N.Y.S.2d 1004 (N.Y. App. Div. 1997)
• Parties: R.M. NEWELL CO., INC., Appellant, v. Richard R. RICE, Process Management, Inc., and Fisher Controls International, Inc., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 1004

653 N.Y.S.2d 1004

236 A.D.2d 843

R.M. NEWELL CO., INC., Appellant, v. Richard R. RICE, Process Management, Inc., and Fisher Controls International, Inc., Respondents.

Supreme Court, Appellate Division Fourth Department.

Feb. 7, 1997.

Offermann, Cassano, Pigott & Greco by Francis Offerman, Buffalo, for appellant.

Williams, Stevens, McCarville & Frizzell, P.C. by John Frizzell, Buffalo, for respondents Rice and Process Management, Inc.

Phillips, Lytle, Hitchock, Blaine and Huber by Michael Powers, Buffalo, for respondent Fisher Controls International, Inc.

Before DENMAN, P.J., and LAWTON, DOERR and BALIO, JJ.

MEMORANDUM.

Plaintiff appeals from an order granting defendants' motions for summary judgment dismissing the complaint. Plaintiff contends that Supreme Court should not have relied on the deposition of Richard M. Newell, plaintiff's President and controlling shareholder; that, as a matter of law, defendant Richard R. Rice is liable for breach of his fiduciary obligations to plaintiff; and that, as a matter of law, defendants Fisher Controls International, Inc. (Fisher), and Process Management, Inc. (Process), are liable for inducing Rice to breach his fiduciary obligations to plaintiff.

The court properly considered Richard Newell's deposition in support of defendants' motions for summary judgment. The transcripts were certified as accurate by the court reporter, who sent them to the witness for his review and signature. Thus, pursuant to CPLR 3116(a), the deposition is usable as though signed. In any event, any statutory proscription against the use of a transcript as a "deposition" would not preclude its use as an admission of plaintiff's controlling principal. CPLR 3212(b) states that "written admissions" may be submitted on a summary judgment motion. Further, rules of evidence provide for admissibility of admissions of an opposing party regardless of whether they are in the form of a deposition. Thus, irrespective of whether it qualified as a "deposition" under CPLR 3116, the transcript constituted proof in admissible form (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

Defendants were properly granted summary judgment. As a matter of law, plaintiff did not sustain damages, an essential element of its causes of action against defendants (see generally, S & K Sales Co. v. Nike, Inc., 816 F.2d 843, 847-848 [2d Cir.1987] [applying New York law], citing Whitney v. Citibank, N.A., 782 F.2d 1106, 1115 [2d Cir.1986] [applying New York law]; Ault v. Soutter, 204 A.D.2d 131, 611 N.Y.S.2d 187; 105 E. Second St. Assocs. v. Bobrow, 175 A.D.2d 746, 746-747, 573 N.Y.S.2d 503). Plaintiff's balance sheets and profit and loss statements contradict the allegation that plaintiff lost $1,000,000 per year in business beginning in 1982. Instead, those documents establish that, on the whole, plaintiff's gross revenues after January 1, 1982 far exceeded those earned before that date and, further, that plaintiff was far more profitable after 1982 than before. Because plaintiff thus sustained no damages following the alleged breach, the complaint was properly dismissed (cf., Drucker v. Mige Assocs. II, 225 A.D.2d 427, 639 N.Y.S.2d 365, lv denied 88 N.Y.2d 807, 647 N.Y.S.2d 164, 670 N.E.2d 448).

Further, as a matter of law, any damages sustained by plaintiff were not proximately caused by wrongful...