Opinion
2012-04-12
Michael DREZIN, Plaintiff–Appellant, v. The NEW YANKEE STADIUM COMMUNITY BENEFITS FUND, INC., Defendant–Respondent.
Michael Drezin, Bronx, appellant pro se. Underweiser & Underweiser, LLP, White Plains (Barry L. Mendelson of counsel), for respondent.
Michael Drezin, Bronx, appellant pro se. Underweiser & Underweiser, LLP, White Plains (Barry L. Mendelson of counsel), for respondent.
SAXE, J.P., SWEENY, MOSKOWITZ, RENWICK, ABDUS–SALAAM, JJ.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered December 10, 2010, which, to the extent appealed from as limited by the briefs, granted defendant's motion to dismiss plaintiff's first, third and fourth causes of action, and to dismiss so much of plaintiff's second cause of action as seeks punitive damages, and denied plaintiff's cross motion for summary judgment on his second cause of action, unanimously affirmed, without costs.
The court properly determined that plaintiff lacked standing to seek the removal of defendant's chairman. The documentary evidence established that defendant, a not-for-profit corporation, had terminated plaintiff from the position of its fund administrator in 2008, prior to the time the action was commenced. Even assuming that plaintiff had been an officer or director of defendant at any point, plaintiff did not represent any interest in defendant at the time the proceeding was commenced ( see Matter of Romney v. Mazur, 52 A.D.3d 610, 860 N.Y.S.2d 568 [2008],lv. denied11 N.Y.3d 710, 868 N.Y.S.2d 603, 897 N.E.2d 1087 [2008] ). The court also properly dismissed the punitive damages claims, since the complaint fails to identify specific tortious acts committed separately from the contract claims ( see New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 316, 639 N.Y.S.2d 283, 662 N.E.2d 763 [1995] ). Similarly, plaintiff's claims based on negligent or grossly negligent performance of a contract are not cognizable ( see City of New York v. 611 W. 152nd St., 273 A.D.2d 125, 710 N.Y.S.2d 36 [2000] ).
The court also properly dismissed plaintiff's causes of action seeking compensation for the years 2009 and 2010, after he had been terminated, and for compensation for drafting defendant's by-laws and its application for tax exempt status, since he failed to allege that he expected compensation for those services ( see Freedman v. Pearlman, 271 A.D.2d 301, 304, 706 N.Y.S.2d 405 [2000] ). Finally, plaintiff's motion for summary judgment was premature since issue had not yet been joined ( seeCPLR 3212[a] ).
We have considered plaintiff's remaining arguments and find them unavailing.