V. Groppa Pools, Inc. v. Massello

• Decision Date: 01 May 2013
• Citation: 964 N.Y.S.2d 563,106 A.D.3d 722,2013 N.Y. Slip Op. 03080
• Parties: V. GROPPA POOLS, INC., et al., appellants, v. Frank MASSELLO, Jr., et al., defendants, Scott Renda, et al., respondents.
• Court: New York Supreme Court — Appellate Division

106 A.D.3d 722

964 N.Y.S.2d 563

2013 N.Y. Slip Op. 03080

V. GROPPA POOLS, INC., et al., appellants,

v. Frank MASSELLO, Jr., et al., defendants,Scott Renda, et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

May 1, 2013.

Steven Felsenfeld, Croton–on–Hudson, N.Y., for appellants.

Joseph A. Maria, P.C., White Plains, N.Y., for respondents.

MARK C. DILLON, J.P., RUTH C. BALKIN, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.

In an action to recover damages for misappropriation of proprietary information and slander, the plaintiffs appeal from an order of the Supreme Court, Westchester County (Tolbert, J.), dated October 28, 2011, which denied their motion pursuant to CPLR 3211(a)(7) to dismiss the counterclaims of the defendants Scott Renda and Scott Renda Pools, LLC.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the plaintiffs' motion which was to dismiss the third counterclaim of the defendants Scott Renda and Scott Renda Pools, LLC, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.

The plaintiff Vincent Groppa is the principal of the plaintiff V. Groppa Pools, Inc., a pool servicing business located in Westchester County. The defendant Frank Massello, Jr., was employed by the plaintiffs from approximately April 2006 until he left in or around December 2010. He is the principal of the defendant Absolute Pools & Spa, Inc. The defendant Scott Renda was employed by the plaintiffs from approximately 1995 until he left in or around April 2011. He is the principal of the defendant Scott Renda Pools, LLC. In or about May 2011 the plaintiffs commenced this action against the defendants, alleging misappropriation of proprietary information and slander. On June 24, 2011, Renda and Scott Renda Pools, LLC (hereinafter together the Renda defendants), interposed a verified answer with three counterclaims. On August 30, 2011, Massello and Absolute Pools & Spa, Inc. (hereinafter together the Massello defendants), interposed a verified answer with three counterclaims. In July 2011, the plaintiffs moved pursuant to CPLR 3211(a)(7) to dismiss the Renda defendants' counterclaims. In an order dated October 28, 2011, the Supreme Court denied the motion.

When assessing a motion to dismiss a complaint or counterclaim pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept as true all facts as alleged in the pleading, accord the pleader the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory ( see Rabos v. R & R Bagels & Bakery, Inc., 100 A.D.3d 849, 851, 955 N.Y.S.2d 109;Mazzei v. Kyriacou, 98 A.D.3d 1088, 1089, 951 N.Y.S.2d 557;Yellow Book Sales & Distrib. Co., Inc. v. Hillside Van Lines, Inc., 98 A.D.3d 663, 664, 950 N.Y.S.2d 151). The allegations of the pleading cannot be vague and conclusory ( see Phillips v. Trommel Constr., 101 A.D.3d 1097, 957 N.Y.S.2d 359), but must contain sufficiently particularized allegations from which a cognizable cause of action reasonably could be found ( see Mazzei v. Kyriacou, 98 A.D.3d at 1090, 951 N.Y.S.2d 557). The test of the sufficiency of a pleading is “ ‘whether it gives sufficient notice of the transaction, occurrences, or series of transactions...