Opinion
2012-11-9
Rosalyn JOBSON and W. Charles Jobson, Plaintiffs–Appellants, v. Michael PROGNO, Defendant–Respondent, et al., Defendants.
Appeal from an order of the Supreme Court, Monroe County (Kenneth R. Fisher, J.), entered May 11, 2011. The order granted the motion of defendant Michael Progno to dismiss the amended complaint. Harris Beach PLLC, Pittsford (Teresa Bair of Counsel), for Plaintiffs–Appellants. Michael Progno, Defendant–Respondent Pro Se.
Appeal from an order of the Supreme Court, Monroe County (Kenneth R. Fisher, J.), entered May 11, 2011. The order granted the motion of defendant Michael Progno to dismiss the amended complaint.
Harris Beach PLLC, Pittsford (Teresa Bair of Counsel), for Plaintiffs–Appellants. Michael Progno, Defendant–Respondent Pro Se.
MEMORANDUM:
Plaintiffs appeal from an order granting the motion of Michael Progno (defendant) to dismiss the amended complaint. Initially, we note that plaintiffs address only claims made by Rosalyn Jobson (plaintiff), and thus they are deemed to have abandoned any contention that Supreme Court erred in granting defendant's motion with respect to claims made by plaintiff W. Charles Jobson ( see generally Ciesinski v. Town of Aurora, 202 A.D.2d 984, 984, 609 N.Y.S.2d 745). With respect to plaintiff's claims, it is well settled that an individual shareholder may not maintain an action for a wrong done to the corporation ( see Citibank v. Plapinger, 66 N.Y.2d 90, 93 n, 495 N.Y.S.2d 309, 485 N.E.2d 974 rearg. denied 67 N.Y.2d 647, 499 N.Y.S.2d 1031, 490 N.E.2d 558), unless the shareholder alleges that the tortfeasor has breached a duty owed to the shareholder independent of any duty owed to the corporation ( see e.g. Behrens v. Metropolitan Opera Assn., Inc., 18 A.D.3d 47, 51, 794 N.Y.S.2d 301). It is equally well settled that “ allegations of mismanagement or diversion of assets by officers or directors to their own enrichment, without more, plead a wrong to the corporation only, for which a shareholder may sue derivatively but not individually ... A complaint the allegations of which confuse a shareholder's derivative and individual rights will, therefore, be dismissed” ( Abrams v. Donati, 66 N.Y.2d 951, 953, 498 N.Y.S.2d 782, 489 N.E.2d 751,rearg. denied 67 N.Y.2d 758, 500 N.Y.S.2d 1028, 490 N.E.2d 1234). Consequently, we conclude that the court properly granted defendant's motion with respect to plaintiff because “none of the [claims asserted by her] arise from an independent duty owed to [her] individually, unrelated to [her] status as a shareholder” ( Albany Plattsburgh United Corp. v. Bell, 307 A.D.2d 416, 420, 763 N.Y.S.2d 119,lv. dismissed in part and denied in part 1 N.Y.3d 620, 777 N.Y.S.2d 14, 808 N.E.2d 1273;cf. Craven v. Rigas, 85 A.D.3d 1524, 1527, 926 N.Y.S.2d 693,lv. dismissed17 N.Y.3d 932, 935 N.Y.S.2d 574, 959 N.E.2d 511).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.