Defendants offer no specific reason why this claim should be dismissed, and in their papers they seemingly assume that only an officer's "independent tort" can give rise to personal liability. An independent tort does give rise to personal liability, Ackerman v. Vertical Club Corp., 462 N.Y.S.2d 657, 660 (N.Y. App. Div. 1983), but so does an officer's "participat[ion] in the commission of a tort by the corporation," Clark v. Pine Hill Homes, Inc., 492 N.Y.S.2d 253, 253 (N.Y. App. Div. 1985). Presumably B M relies chiefly on this second ground for personal liability — that Dreher participated in K-USA's negligence. Dreher, for example, allegedly ignored repeated notifications by the plaintiff about malfunctioning equipment (Compl. ¶ 33); failed to accurately diagnose problems with equipment and parts ( id. ¶ 111); and delayed in sending service personnel to B M's plant to repair faulty equipment ( id.). Defendants have not shown why these allegations, if true, could not plausibly entitle B M to relief for Dreher's negligence.
"A claim can exist for aiding and abetting conversion if the aider-abettor has actual knowledge that the person who directly converted the plaintiff's property did not own that property" ( Torrance Constr., Inc. v. Jaques, 127 A.D.3d 1261, 1263, 8 N.Y.S.3d 441 ). Here, the complaint adequately stated causes of action alleging conversion and aiding and abetting conversion against Krantz and Schenker (seeAguirre v. Paul, 54 A.D.3d 302, 304, 862 N.Y.S.2d 580 ; Ingram v. Machel & Jr. Auto Repair, 148 A.D.2d 324, 538 N.Y.S.2d 539 ; Ackerman v. Vertical Club Corp., 94 A.D.2d 665, 462 N.Y.S.2d 657 ). Furthermore, contrary to Krantz's contention, the complaint also adequately stated a cause of action against him for money had and received (seeParsa v. State of New York, 64 N.Y.2d 143, 148, 485 N.Y.S.2d 27, 474 N.E.2d 235 ; Litvinoff v. Wright, 150 A.D.3d 714, 716, 54 N.Y.S.3d 22 ).
The motion court's analysis was proper. In any event, contrary to plaintiff's contention, the court engaged in a de novo review, afforded plaintiff every possible favorable inference, accepted his pleadings as true, and considered the affidavit plaintiff submitted in support of the motion in an effort to sustain his pleading ( Underpinning & Found. Constr., Inc. v. Chase Manhattan Bank, 46 N.Y.2d 459, 462, 414 N.Y.S.2d 298, 386 N.E.2d 1319 [1979]; Ackerman v. Vertical Club Corp., 94 A.D.2d 665, 462 N.Y.S.2d 657 [1983] ).
With respect to the court's finding that plaintiffs failed to establish Meyer's status as plaintiffs' agent in his negotiations with Crossland, in that the pleadings did not set forth sufficient facts to support the existence of an agency relationship, we find to the contrary that pleadings were sufficiently detailed to apprise defendants of the conduct on which this claim was predicated, in satisfaction of CPLR 3016 (b). In determining whether pleadings meet the statutory requirement, we have "subordinated the threshold pleading requirement of CPLR 3016 (subd [b]) to the notice standard of CPLR 3013" ( Ackerman v. Vertical Club Corp., 94 A.D.2d 665, 666, appeal dismissed 60 N.Y.2d 644). Here, plaintiffs alleged that Meyer had acted on their behalf in assuming negotiations with Crossland, and that they had relied upon him specifically because of Lazard's expertise and reputation, because of Meyer's alleged "inside connection" with a highly placed Crossland executive and because Crossland apparently preferred to deal with plaintiffs through Lazard rather than directly with plaintiffs.
Although the statements in pleadings are required to be factual, "a party may supplement or round out his pleading by conclusory allegations or by 'stating legal theories explicitly' if the facts upon which the pleader relies are also stated" (Foley v D'Agostino, 21 A.D.2d 60, 63, quoting Notes, First Preliminary Report of Advisory Committee on Practice and Procedure, at 63 [1957]). Any deficiency on the face of the complaint as to lack of details in pleading the facts and circumstances relied upon may be cured by affidavit submitted by the plaintiff, resort to which is proper for the limited purpose of sustaining a pleading against a motion to dismiss under CPLR 3211 (a) (7) (see, Rovello v Orofino Realty Co., 40 N.Y.2d 633; Ackerman v Vertical Club Corp., 94 A.D.2d 665). The complaint alleges that Brout negligently advised the corporate plaintiff to pay an outstanding tax liability.
In addition, this fraud action cannot be maintained against Zeckendorf because there is no allegation or proof that he personally made the alleged misrepresentations, ratified or profited from them. (See, Ackerman v Vertical Club Corp., 94 A.D.2d 665 [1st Dept 1983].) Accordingly, the third cause of action is dismissed.
In any event, a review of the pleadings along with plaintiff's detailed affidavits and exhibits demonstrates that the causes of action for fraud and conversion are sufficiently pleaded. (See, Ackerman v Vertical Club Corp., 94 A.D.2d 665.) While defendants deny personal liability, a review of the evidence demonstrates that questions of fact exist which preclude summary judgment.
Nor do we find the allegations of the fifth cause of action too conclusory to stand (CPLR 3016 [b]), particularly when it is noted that the claim rests upon Lerner's failure to disclose the true circumstances surrounding the legal retainer, and not upon any express representation. Any possible lack of detail in the complaint has been adequately supplemented by plaintiff's affidavits to which reference is proper on a motion to dismiss (Ackerman v. Vertical Club Corp., 94 A.D.2d 665, appeal dismissed 60 N.Y.2d 644; Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 636). Also, unlike the first and fourth causes of action which are brought against Lerner only, the fifth cause of action is properly asserted against the Abrams firm also, which should not be prematurely dismissed from this action on the pleadings.
By staying the plaintiffs' action in New York, the court properly exercised its broad discretion by making such order as justice required (see, CPLR 3211 [a] [4]; Whitney v Whitney, 57 N.Y.2d 731; Key Bank v Lake Placid Co., 103 A.D.2d 19; Ackerman v Vertical Club Corp., 94 A.D.2d 665). We have considered the plaintiffs' remaining contentions and find them to be without merit.
With the exception of the eighth cause of action seeking damages for breach of a fiduciary duty, Falkner is sued in his capacity as a corporate officer. As a disclosed corporate agent, Falkner cannot be held personally liable for the acts of his corporations, unless he has participated or personally profited in the wrong (Prudential-Bache Metal Co. v Binder, 121 A.D.2d 923; Ackerman v Vertical Club Corp., 94 A.D.2d 665; Buckley v 112 Cent. Park S., 285 App. Div. 331, 334). Neither the complaint nor the affidavit in opposition to Falkner's motion alleges that Falkner participated or profited personally from the acts of fraud, misrepresentation, negligence and breach of contract pleaded in the complaint's other causes of action.