Opinion
November 3, 1994
Appeal from the Supreme Court, New York County (Carol Huff, J.).
In the third cause of action, plaintiffs have not pleaded factual allegations covering each of the elements of fraud (see, Orbit Holding Corp. v. Anthony Hotel Corp., 121 A.D.2d 311, 314), nor have they pleaded the necessary elements of prima facie tort, including special damages (see, Freihofer v. Hearst Corp., 65 N.Y.2d 135, 143), and "'disinterested malevolence'" stemming from a malice unmixed with any other motive (Burns Jackson Miller Summit Spitzer v. Lindner, 59 N.Y.2d 314, 333). The pleading seems to be one of conspiracy to breach the option agreement, which cannot be sustained since one of the alleged conspirators was a party to that agreement (see, Callahan v Gutowski, 111 A.D.2d 464, 465), and one of the parties alleged to be a co-conspirator in the third cause of action is a party to the subject option agreement. Accordingly, the third cause of action should have been dismissed.
The plaintiffs have not pleaded that they made efforts "to secure the initiation of such action by the board or the reasons for not making such effort" (Business Corporation Law § 626 [c]), and in particular, did not render a detailed pleading that such a demand would have been futile (see, Barr v. Wackman, 36 N.Y.2d 371, 379). Plaintiffs offer only conclusory allegations that the two defendant directors control the remaining directors (cf., e.g., Curreri v. Verni, 156 A.D.2d 420). They do not, for instance, present specific and detailed allegations that the defendant directors have coercive powers over the other directors (see, e.g., Miller v. Kastner, 100 A.D.2d 728), or that the defendant directors constitute a majority (see, e.g., Miller v. Schreyer, 200 A.D.2d 492). Accordingly, the seventh and eighth causes of action should have been dismissed with leave to replead, in a detailed proposed amended pleading (see, Morrison v. Filmways, Inc., 25 A.D.2d 837).
Dismissal was properly denied as to the other relevant claims since factual allegations discernable from the four corners of the pleadings, taken together, manifest causes of action cognizable at law (see, Tenzer, Greenblatt, Fallon Kaplan v. Ellenberg, 199 A.D.2d 45). Contrary factual allegations in the defendants-appellants' affidavits in support of their motion "are not to be examined for the purpose of determining whether there is evidentiary support for the pleading" (Rovellow v. Orofino Realty Co., 40 N.Y.2d 633, 635) and do not warrant CPLR 3211 dismissal (see, Four Seasons Hotels v. Vinnik, 127 A.D.2d 310, 318-319).
We have considered the defendants-appellants' remaining arguments, and find them to be without merit.
Concur — Sullivan, J.P., Rosenberger, Ross, Asch and Tom, JJ.