Oseff v. ScottiOseff v. Scotti
Ordered that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of Balco Alarm Services Corp. and Frank Scotti which was for summary judgment dismissing the cause of action in action No. 1 alleging defamation insofar as asserted against Frank Scotti, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
Balco Alarm Services Corp. (hereinafter Balco), a corporation whose sole shareholder is Frank Scotti, entered into an agreement dated December 20, 2006 (hereinafter the contract), to sell certain business assets, including customer files and related customer service contracts, to Balco Security Services, Inc. (hereinafter BSS). Lance Oseff and Jennifer Oseff are the sole shareholders of BSS. The contract contained a restrictive
In 2009, Lance Oseff, Jennifer Oseff, Security Central Alarm Services, Inc., and BSS (hereinafter collectively the BSS parties) commenced an action against Scotti and Balco, among others, seeking to permanently enjoin them from, inter alia, soliciting BSS customers, and to recover damages for, inter alia, breach of contract, fraudulent inducement, defamation, conspiracy, and tortious interference with contract, and to recover attorneys’ fees (action No. 1). Balco thereafter commenced a separate action against the BSS parties to enforce the promissory note and the personal guaranty, alleging that they were in default under the terms of the promissory note (action No. 2). The Supreme Court joined the two actions for trial.
In action No. 1, Balco and Scotti moved for summary judgment dismissing several of the causes of action insofar as asserted against them. In action No. 2, Balco moved for summary judgment on the complaint. In the order appealed from, the Supreme Court granted those branches of Balco and Scotti‘s motion which were for summary judgment dismissing the causes of action in action No. 1 alleging fraud, tortious interference with contract, defamation, and conspiracy, and to recover attorneys’ fees insofar as asserted against them, and, in effect, sua sponte, directed dismissal of the cause of action for a permanent injunction insofar as asserted against Balco and Scotti, and directed dismissal of the cause of action alleging breach of contract insofar as asserted against Scotti. The court denied Balco‘s motion in action No. 2. This appeal and cross appeal ensued.
The Supreme Court erred in granting that branch of the motion of Balco and Scotti which was for summary judgment dismissing the cause of action in action No. 1 alleging defamation, which was asserted against Scotti only. Scotti failed to establish his prima facie entitlement to judgment as a matter of law by failing to present any evidence to show that his alleged defamatory statements would not tend to injure the BSS parties in their trade, business, or profession and, thus, would not constitute slander per se (see Shaw v Club Mgrs. Assn. of Am., Inc., 84 AD3d 928, 930 [2011]; Wasserman v Haller, 216 AD2d 289, 289-290 [1995]). Accordingly, this branch of the motion of Balco and Scotti should have been denied, regardless of the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
The Supreme Court also properly granted that branch of the motion of Balco and Scotti which was for summary judgment dismissing the cause of action in action No. 1 alleging conspiracy insofar as asserted against them, as New York does not recognize an independent cause of action for conspiracy to commit a tort (see Rose v Different Twist Pretzel, Inc., 123 AD3d 897, 898 [2014]; Blanco v Polanco, 116 AD3d 892, 895-896 [2014]).
The Supreme Court also properly granted that branch of Balco and Scotti‘s motion which was for summary judgment dismissing the cause of action in action No. 1 alleging fraud insofar as asserted against them. “While a general merger clause is ineffective to exclude parol evidence of fraud in the inducement, a ‘specific disclaimer destroys the allegations in [a] plaintiff‘s complaint that the agreement was executed in reliance upon . . . contrary oral [mis]representations’ ” (Rudnick v Glendale Sys., 222 AD2d 572, 573 [1995], quoting Danann Realty Corp. v Harris, 5 NY2d 317, 320-321 [1959]; see Busch v Mastropierro, 258 AD2d 492, 493 [1999]; Masters v Visual Bldg. Inspections, 227 AD2d 597 [1996]). In support of this branch of their motion, Balco and Scotti relied upon the contract, which provides that Balco made no representation or warranty, either express or implied, as to the assets sold,
Balco and Scotti also demonstrated their prima facie entitlement to judgment as a matter of law dismissing the cause of action in action No. 1 seeking to recover attorneys’ fees insofar as asserted against them by demonstrating that nothing in the contract provided for such recovery (see E.C.I. Fin. Corp. v First Am. Tit. Ins. Co. of N.Y., 121 AD3d 833, 834 [2014]). In opposition, the BSS parties failed to raise a triable issue of fact.
Upon granting those branches of the motion of Balco and Scotti which were for summary judgment dismissing the causes of action in action No. 1 alleging fraud, tortious interference with contract, defamation, and conspiracy, and to recover attorneys’ fees insofar as asserted against them, the Supreme Court properly directed the dismissal of the cause of seeking a permanent injunction insofar as asserted against Balco and Scotti, as there was no evidence of irreparable harm or of an absence of an adequate legal remedy (see Icy Splash Food & Beverage, Inc. v Henckel, 14 AD3d 595 [2005]; McDermott v City of Albany, 309 AD2d 1004 [2003]). Similarly, the Supreme Court properly directed the dismissal of the cause of action alleging breach of contract insofar as asserted against Scotti, since the record demonstrated that Scotti signed the contract of sale in his capacity as an officer of Balco and not individually and, thus, he had no personal liability for any breach of the contract (see Bonacasa Realty Co., LLC v Salvatore, 109 AD3d 946 [2013]).
The Supreme Court also properly denied Balco‘s motion for summary judgment on the complaint in action No. 2. In support of its motion, Balco relied upon the contract, the promissory note, and the personal guarantee. Balco failed to establish its prima facie entitlement to judgment as a matter of law, as his submissions demonstrated that the promissory note and personal guaranty being sued upon were intertwined with the