Opinion
October 3, 1994
Appeal from the Supreme Court, Queens County (Rutledge, J.).
Ordered, that the appeals from the orders dated February 10, 1993, and March 11, 1993, are dismissed as abandoned, without costs or disbursements; and it is further,
Ordered, that the order entered March 12, 1993 is modified, on the law, by vacating the award of attorneys' fees; as so modified, the order is affirmed, without costs or disbursements.
The plaintiff's contention that there was no summary judgment motion before the Supreme Court is not properly before this Court for review, since it was raised for the first time in his reply brief (see, Duran v. Heller, 203 A.D.2d 414).
In any event, the Supreme Court correctly treated the motion and cross motion as motions for summary judgment. The papers and proof submitted by the parties clearly showed that they were seeking summary judgment. The parties have charted their own procedural course and this Court will not relieve them of the consequences arising therefrom (see, Mihlovan v. Grozavu, 72 N.Y.2d 506; 2M Realty Corp. v. Boehm, 204 A.D.2d 620; Twelve Lions Renaissance Corp. v. 684 Owners Corp., 157 A.D.2d 577).
The plaintiff expressly informed the Supreme Court that this action was not one to recover 50 shares of the defendant Elm Drugs, Inc. (hereinafter Elm) which he gave to the defendant Vianna as a gift in contemplation of marriage. As a result, the plaintiff expressly waived any argument that he could recover the 50 shares pursuant to Civil Rights Law § 80-b (see, e.g., Civil Rights Law § 80-b; Horowitz v. Incorporated Vil. of Roslyn, 144 A.D.2d 639, 641-642; Brown v. Lockwood, 76 A.D.2d 721, 729). Even if we were to reach the issue in the interest of justice, we would find that Civil Rights Law § 80-b is inapplicable, as the defendant Vianna executed a shareholder's agreement, a guarantee, and gave other consideration in exchange for the plaintiff's transfer of 50 shares of Elm.
The first two causes of action, alleging that the plaintiff transferred 50 shares to Vianna based upon her fraudulent representation that she would marry him, were properly dismissed by the Supreme Court, as they were abolished by Civil Rights Law § 80-a (see, Civil Rights Law §§ 80-a, 83, 84; Andie v. Kaplan, 288 N.Y. 685; Brandes v. Agnew, 275 App. Div. 843; Sulkowski v. Szewczyk, 255 App. Div. 103; Bressler v. Bressler, 133 N.Y.S.2d 38, 40-42; Easley v. Neal, 202 Misc. 554, 556-557). In addition, the Supreme Court properly dismissed the first four causes of action, due to the absence of any evidence of mistake, fraud, or of a contrary agreement made by the parties at the time they entered into the shareholder's agreement and the guarantee (see, W.W.W. Assocs. v. Giancontieri, 77 N.Y.2d 157, 162; Chimart Assocs. v. Paul, 66 N.Y.2d 570, 573-574; Tomoser v. Kamphausen, 307 N.Y. 797, 801; Brown v. Lockwood, 76 A.D.2d 721, 731, supra; Triggs v. Triggs, 61 A.D.2d 911, affd 46 N.Y.2d 305).
The plaintiff's fifth cause of action, alleging waste and mismanagement of Elm, was properly dismissed, as it should have been brought as a derivative action (see, e.g., Matter of Levandusky v. One Fifth Ave. Apt. Corp., 75 N.Y.2d 530, 543 [Titone, J., concurring]; Abrams v. Donati, 66 N.Y.2d 951). In addition, the defendants demonstrated that the plaintiff's request to inspect shareholder lists and books and records in order to value the stock of Elm, was made in bad faith in light of the shareholder's agreement which contained the names of all shareholders and an agreed-upon method for valuing the corporate stock (see, Business Corporation Law § 724 [b]; Rockwell v. SCM Corp., 496 F. Supp. 1123, 1125-1126; Matter of Crane Co. v Anaconda Co., 39 N.Y.2d 14, 18-19).
Finally, we find that the sanction of attorneys' fees was inappropriate. Balletta, J.P., O'Brien, Copertino and Florio, JJ., concur.